UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


UNIVERSITY  of  CALIFORNIA 

LOS  ANGELES 
LIBRARY 


THE 


LAW     LIBRARY. 


July,  August  and  September,  1854, 


PHILADELPHIA: 
T.  &  J.  W.  JOHNSON,  LAW  BOOKSELLERS, 

NO.    197    CHESTNUT    STREET. 

1854. 


THE    LAW    LIBEAEY. 


CONTENTS. 

Commentaries  upon  International  Law.  By  Robert  Phillimore,  M.P., 
of  the  College  of  Advocates,  and  of  the  Middle  Temple,  Author  of 
"  The  Law  of  Domicil."  Yol.  I. 

A  Treatise  on  the  Contract  of  Partnership,  by  Pothier  :  with  the  Civil 
Code  and  Code  of  Commerce  relating  to  that  Subject,  in  the  same 
Order.  Translated  from  the  French.  With  Notes  referring  to  the 
Decisions  of  the  English  Courts.  By  Owen  Davies  Tudor,  of  the 
Middle  Temple,  Esq.,  Barrister-at-Law. 


COMMENTARIES 


INTERNATIONAL  LAW, 


BY 


ROBERT    PHILLIMORE,  M.P., 

OF   THE    COLLEGE    OP   ADVOCATES,   AND    OF   THE    MIDDLE   TEMPLE,    AUTHOR    OF 

"THE  LAW  OF  DOMICIL." 


'AoxpaAtj  /?a0gov,  Aral  6/irf- 

rgtwoj  Eigava,  rajiiai 

'  A.vtigaai  TT\OVTOV,  x^vaeai 

Ilar&j  ev/3ov\ov  e^troj."  PlND.  Olymp.  13. 

"  Justice  is  the  common  concern  of  mankind." 

BURKE,  vol.  v.  p.  375.     Thoughts  on  the  French  Revolution. 


,  I. 


PHILADELPHIA: 
T.  &  J.  W.  JOHNSON,  LAW  BOOKSELLERS, 

NO.   197   CHESTNUT    STREET. 

1854. 


-4      -iff  ,     .:    .--. 

115 3 4 l 


KITE  &  WALTON. 


3182 


C  73 
V.  / 


TO 


CHARLES    JOHN   VISCOUNT    CANNING, 


IN  AFFECTIONATE 


ACKNOWLEDGMENT  OF  HIS  LONG  FRIENDSHIP, 


AND   IN    SINCERE   VENERATION    FOR   THE   ILLUSTRIOUS   NAME 


WHICH   HE   WORTHILY   BEARS, 


THESE  PAGES  ARE  INSCRIBED. 


PREFACE. 


THE  necessity  of  mutual  intercourse  is  laid  in  the  nature  of  States,  aa 
it  is  of  Individuals,  by  God,  who  willed  the  State  and  created  the  Indi- 
vidual. The  intercourse  of  Nations,  therefore,  gives  rise  to  International 
Rights  and  Duties,  and  these  require  an  International  Law  for  their  regu- 
lation and  enforcement. 

That  law  is  not  enacted  by  the  will  of  any  common  Superior  upon 
earth,  but  it  is  enacted  by  the  will  of  God ;  and  it  is  expressed  in  the 
consent,  tacit  or  declared,  of  Independent  Nations. (a) 

The  law  which  governs  the  external  affairs  equally  with  that  which 
governs  the  internal  affairs  of  States,  receives  accessions  from  custom  and 
usage,  binding  the  subjects  of  them  as  to  things  which,  previous  to  the 
introduction  of  such  custom  and  usage,  might  have  been  in  their  nature 
indifferent.  (&) 

Custom  and  usage,  moreover,  outwardly  express  the  consent  of  nations 
to  things  which  are  naturally,  that  is  by  the  law  of  God,  binding  upon 
them.  But  it  is  to  be  "remembered  that  in  this  latter  case,  usage  r#  .-. 
is  the  effect  and  not  the  cause  of  the  Law.(c) 

International  Jurisprudence  has  received  since  the  civilization  of  man- 
kind, and  especially  since  the  introduction  of  Christianity,  continual  cul- 
ture and  improvement ;  and  it  has  slowly  acquired,  in  great  measure  and 
on  many  subjects,  the  certainty  and  precision  of  positive  law. 

There  can  be  few  nobler  objects  of  contemplation  and  study  than  to 
trace  the  gradual  progress  of  this  jurisprudence — the  steps  by  which  it 
has  arisen  from  a  few  simple  rules  of  natural  law  transferred  from  indi- 
*J  viduals  to  states,  to  the  goodly  and  elaborate  fabric  which  it  now  presents. 
The  history  of  this  progress  has  been  written  by  Ompteda,  Miruss,  and 
Wheaton(flf)  in  a  manner  which  leaves  the  German,  the  English,  and  the 
French  readers  but  little  to  desire.  This  subject  receives  some  further 

(a)  Grot.  Proleg.  S3.  19 — 25.  "Omni  autem  in  re  consensio  omnium  gentium 
lex  naturae  putanda  est::>  Cic.  Tusc.  i.  13. 

(6)  "  Omne  jus  aut  necessitas  fecit,  aut  consensus  constituit,  autformavit  consue- 
tude."— Dig.  de  Leg.  40. 

(c)  Veruntamen  hie  etiam  usus  est  effectus  juris,  non  ipsum  jus,  quia  hoc  jus  non 
ex  usu,  sed  usus  ex  jure  est." — Suarez,  De  Lege  a  terra  et  naturali,  ac  Jure  Gen- 
tium, 1.  i.  c.  xix.  8.     Cic.  de  Off.  1.  3.  5. 

(d)  By  this  author,  both  in  English  and  French. 


VI  PHILLJMORE    ON    INTERNATIONAL    LAW. 

notice  in  the  body  of  this  work,  but  the  space  within  which  this  preface 
is  necessarily  confined,  does  not  allow  me  to  enter  into  details,  which  have 
received  a  very  able  exposition  from  the  authors  to  whom  I  have  referred ; 
and  I  must  content  myself  with  inviting  the  attention  of  my  readers  to  the 
principal  epochs  of  this  interesting  and  instructive  portion  of  the  moral 
and  intellectual  history  of  mankind. 

I  propose  to  cast  a  very  rapid  glance  over  the  principal  Jurists,  whose 
labours  have  contributed  to  raise  the  edifice  of  International  Law,  and  to 
conclude  this  preface  with  some  observations  on  a  subject,  not  altogether, 
it  may  be  hoped,  devoid  of  interest  to  all  students  of  jurisprudence  and 
PJJ.  ..-,  *history,  but  certainly  not  unworthy  the  attention  of  English 
L  J  readers — namely,  the  growth  and  cultivation  of  the  science  of 
International  Law  in  this  country. 

BEFOKE  THE  CHRISTIAN  JERA. 

It  is  hardly  necessary  to  say,  that  the  peculiar  dispensation  under  which 
the  Jewish  nation  was  placed,  and  the  rigidly  prescribed  mode  of  their 
dealings  with  foreign  nations,  render  vain  any  attempt  to  trace  in  the  his- 
tory of  that  people  the  vestiges  of  International  Jurisprudence. (e\ 

The  Egyptians  held  the  persons  of  ambassadors  sacred  upon  strictly 
religious  grounds,  and  it  appears  to  have  been  not  unreasonably  supposed 
that  the  Egyptian  priests  compiled  a  written  jus  feciale,  which  Pythago- 
ras transplanted  into  Greece.  Neither  the  source  nor  the  nature  of  In- 
ternational Law  can  be  said  to  have  been  unknown  to  the  Greeks. 

It  was  indeed  a  maxim  of  their  wisest  statesmen  (/)  that  no  State  could 
subsist  without  acknowledging  the  rights  of  its  neighbours,  and  the  re- 
markable institution  of  the  Amphyctyonic  League  approached  to  the 
reality  of  an  international  tribunal,  so  far  as  the  great  republic  of  the 
different  States  of  Greece  was  concerned ;  but  the  stranger  with  whom 
there  was  no  alliance  was  an  enemy,  and  all  treaties  of  peace,  like  those 
formerly  made  between  the  Turks  and  Europeans,  were  for  a  limited 
period. 

The  Collegium  and  the  Jus  Feciale  of  the  Romans  are  the  most  remark- 
able instances  of  regard  for  International  justice  ever  exhibited  by  any 
..£  .....  nation,  and  the  wonder  is  *increased  by  the  reflection,  that  this 
L  J  Collegium  was  the  institution  of  a  nascent  state,  which,  in  its 
very  infancy,  laid  down  the  observance  of  right  towards  other  nations,  as 
a  cardinal  principle  of  its  public  policy. — The  institution  of  the  recupe- 
ratores  also  bears  testimony  to  the  same  political  integrity  ;  how  much, 
indeed,  the  practice  of  Rome  in  her  maturity  and  decline  was  at  variance 
with  that  principle  of  her  early  days,  is  well  known. 

But  making,  as  History  compels  us  to  do,  this  admission,  it  must  be 

(e)  Michaelis,  Mosaisches  Recht,  Th.  ii.     Israelitisches  Staatsrecht. 
See  the  treatment  of  David's  ambassador  by  the  King  of  the  Ammonites. — 2 
Samuel,  c.  x. 

(/)  Wacksmuth,  Jus  Gentium  quale  obtinuit  apud  Grsecos  (Berol.  1822.) 
Vide  post,  Part  I.,  chapter  ii. 


PREFACE.  Til 

remembered  that  if  the  Jus  inter  Gentes,(g}  strictly  speaking,  was  vio- 
lated by  the  practice  of  conquering  Rome,  yet  the  Jus  Gentium  was  in 
reality  established  by  her  compilation  of  Jurisprudence ;  for  in  this  stood 
transcribed  externally,  if  the  word  were  applicable  to  a  mortal  work,  those 
maxims  of  written  Reason,  those  principles  of  Natural  Law,  which  not 
only  guide  a  State  in  its  conduct  towards  Individual  Foreigners,  and  are 
the  root  of  Comity  or  Private  International  Law,  but  which  guide  a 
State  in  its  conduct  towards  other  States,  and  which  constitute  the  most 
considerable  foundation  of  Public  International  Justice. 

THE  CHRISTIAN  MRA  BEFORE  GROTIUS. 

We  enter  next  upon  the  Christian  aera.  Great  and  inestimable  has  been 
the  effect  of  the  doctrines  of  Revelation  upon  the  Jurisprudence  of  Na- 
tions, though  long  retarded  by  the  evil  passions  both  of  mankind  gene- 
rally and  of  the  governors  of  men  j  yet  the  language,  and  the  teaching, 
the  system  of  a  representation  of  different  *nations,  the  very  forms  r^.  -. 
of  the  assembling  of  the  Councils  of  the  Church,  the  notion  of  a  L  J 
common  International  Tribunal,  the  authority  of  the  Pope  during  ages 
steeped  in  intellectual  ignorance  and  moral  grossness,  contributed  to  pre- 
serve some  idea  of  the  Duties  and  Rights  of  Nations. 

During  the  earlier  part  of  the  Middle  Ages  the  Pope  discharged  the 
functions  of  International  Judge  and  Arbitrator  in  the  conventions  of 
Christendom.  The  practice  might  have  been  imperfect,  but  the  theory 
was  sublime.  The  Right  of  the  Pope  to  discharge  these  noble  functions 
was  almost  unquestioned  before  the  time  of  Boniface  VIII.,  1302,  A.  D. 
A  great  change  was  effected  by  the  introduction  and  prevalence  of  the 
doctrine,  that  a  distinction  was  to  be  taken  between  temporal  subjection 
ratione  feudi,  and  subjection  in  temporal  matters  ratione  peccati.Hi\  In 
Ecclesiastical  Law  the  distinction  was  of  little  avail,  and  easily  evaded, 
for  in  the  Middle  Ages  the  acts  of  an  absolute  irresponsible  prince  were 
easily  brought  within  the  category  of  sin  (ratione peccati}.  But  in  In- 
ternational Law,  the  distinction  was  of  the  utmost  importance,  for  it  was 
now  competent  to  Princes  to  tell  their  subjects,  that  there  were  circum- 
stances, under  which  the  Papal  Interdict  was  unlawful,  and  therefore 
invalid.  The  Pope  lost  his  character  of  international  Judge,  and  re- 
tained but  for  a  season,  and  with  difficulty,  the  character  of  International 
Arbitrator.  That  too,  had  disappeared  before  the  epoch  of  the  Reforma- 
tion ;  though  up  to  that  period  all  the  foreign  or  international  affairs  of 
a  state  were  considered  and  treated  as  matters  appertaining  solely  to  the 
prince,  and  with  which  the  people  had  no  concern. 

It  must  be  remembered  that,  even  in  the  year  1493,  *Ferdinand  r%-\ 
and  Isabella  were  confirmed  in  their  possessions  and  discoveries  in  L  -* 
the  New  World  by  the  Bull  of  the  Pope,  issued,  as  former  Bulls  had 
been,  in  virtue  of  his  territorial  supremacy  over  the  whole  world ;  and 

(#)  The  expression  of  Lucan  as  to  the  violation  of  the  Laws  of  Embassy  by  the 
Egyptians  is  very  remarkable ;  I  do  not  remember  to  have  seen  it  noticed : 
"  Sed  nequeyws  mundi  valuit,  neque  fcedera  sancta 

Gentibus."— Pharsal.  x,  471-2. 
(A)  De  Marca,  De  Concord.  Sacerd.  et  Imper.  iv.  c.  xvi.  5. 


viii  PHILLIMORE    ON    INTERNATIONAL    LAW. 

that  as  late  as  the  year  1701,  the  Pope  complained  in  his  Consistory, 
that  Austria  had  recognized  the  Ruler  of  Prussia  under  his  new  title  of 
King,  "  not  considering  that  it  was  the  exclusive  privilege  of  the  Holy 
See  to  make  kings."(t) 

The  Crusades  introduced  the  principle  of  Intervention,  both  upon  the 
general  ground  of  religious  sympathy,  and  upon  the  particular  ground  of 
reverence  for  those  holy  places  which  had  been  the  scenes  of  our  Lord's 
life  and  death  —  principles  which,  after  the  lapse  of  five  centuries,  are, 
while  I  write  these  pages,  again  most  powerfully  affecting  the  destinies 
of  Europe.  Though  the  Greek  Empire,  for  many  centuries  before  its 
destruction,  occupied  no  position  which  affects  the  history  of  International 
Jurisprudence,  yet  the  conquest  of  Constantinople  by  the  Turks  operated 
very  injuriously  upon  the  jus  commune  of  Christendom;  because  thereby 
an  important  portion  of  Christendom  has  been,  up  to  a  very  recent  pe- 
riod, exempted  from  its  influence.  Events,  however,  which  are  now  hap- 
pening, the  great  internal  changes  in  the  habits  and  laws  of  that  extra- 
ordinary people,  and  their  increasing  connection  with  the  Christian  states, 
are  evidently  preparing  the  way  for  a  general  diffusion  of  International 
justice  among  nations  of  different  religious  creeds.  During  the  Middle 
Ages,  the  most  remarkable  features  of  International  Jurisprudence  are 
the  maritime  codes  of  commercial  towns,  the  institution  of  the  Consulate, 
the  laws  and  customs  of  Embassies. 


[*xi]  *^ERA  OF  GROTIUS. 

It  is  strange  that  the  admirable  and  luminous  treatise  of  Suarez,(&) 
De  Legibus  et  Deo  Legislatore,  is  not  referred  to  by  Grrotius  in  his  great 
work,  because  it  appears  from  his  other  writings  that  he  was  acquainted 
(as  indeed  he  could  not  but  have  been)  with  the  works  of  this  profound 
jurist.  Suarez  certainly  cannot  be  claimed  as  a  fruit  of  the  Reformation, 
but  at  that  epoch,  from  whatever  cause,  a  new  acra  of  International  Ju- 
risprudence opens  upon  us.  Streaks  of  light  from  various  countries,  our 
own  included,  preceded  the  dawn  of  International  Jurisprudence  which 
appeared  in  the  Mare  Liberum  of  Grotius,  published  in  1609  ;  but  its  full 
meridian  shone  forth  in  his  great  work,  De  Jure  Belli  et  Paces,  which 
was  published  in  1624. 

It  is  scarcely  too  much  to  say,  that  no  uninspired  work  has  more  largely 
contributed  to  the  welfare  of  the  Commonwealth  of  States.  It  is  a  monu- 
ment which  can  only  perish  with  the  civilized  intercourse  of  nations,  of 
which  it  has  laid  down  the  master  principles  with  a  master's  hand.  Gro- 
tius first  awakened  the  conscience  of  Governments  to  the  Christian  sense 
of  International  duty.(^) 

His  work  has  been  blamed  for  a  want  of  systematic  arrangement,  and 
because  the  examples  which  illustrate  the  principles  of  law  are  taken 
chiefly  from  classical  times  and  classical  literature;  but  these  defects 

(t)  Lamberty,  Memoires,  t.  i.  353,  cited  Giinther,  ii.  445. 
Vide  post,  pp.  86-7,  and  Appendix. 
(k)  Born  1548,  died  1617. 

(I)  "Christianis  placuit"  "Christianis  in  universium  placuit"  "hoc  perfecit  reveren- 
tia  Christianas  legis"  &c.  Vide  post,  p.  39. 


PREFACE.  IX 

were,  in  truth,  necessarily  incident  to  the  particular  period  at  which  he 
wrote.  His  work  was  defended  from  these  charges  by  himself  during 
his  lifetime,(m)  and  since  bis  death  has  *received  a  vindication  ,#  .... 
from  the  pen  of  Sir  James  Mackintosh,  which  will  not  easily  be  L  -• 
surpassed. (?i) 

I  would  fain  linger  on  the  merits  of  this  famous  master-builder  of  In- 
ternational Jurisprudence,  this  great  legislator  of  the  community  of 
states,  but  I  am  admonished  by  diminishing  space  to  proceed. 

FROM    THE  PEACE  OF  WESTPHALIA,  1648,  TO  THE 
TREATY   OF  UTRECHT,  1713. 

International  Jurisprudence  received  considerable  cultivation,  a  natural 
result  from  the  increased  intercourse  between  European  nations,  both  in 
Europe  and  in  their  colonies. 

Puffendorf,  in  1672,  published  his  once  admired,  and  still  celebrated 
work,  De  Jure  Naturae  et  Gentium  :  it  had  the  merit  of  stating  boldly 
that  Natural  Law  was  binding  upon  nations  as  well  as  upon  individuals. 

It  would  indeed  be  hardly  fair  to  say  that  Grotius  had  altogether 
omitted  Natural  Law  from  the  sources  of  International  Jurisprudence; 
but  certainly  Puffendorf  is  entitled  to  the  merit  of  having  supplied,  by 
greater  precision  of  statement,  a  philosophical  defect  upon  this  subject 
in  the  work  of  his  predecessor.  In  other  respects,  however,  the  dispar- 
aging opinion  of  Leibnitz  upon  the  work  of  Puffendorf  has  been  gene- 
rally confirmed;  it  is,  in  truth,  very  inferior  to  the  treatise  of  Grotius. 

*Leibnitz,  whose  Codex  Juris  Gentium  Diplomaticus  was  rj|f  ..... 
published  in  1693,  manifested  in  his  preface,  and  in  other  pas-  L  J 
sages  scattered  about  his  works,  a  profound  and  just  acquaintance  with 
the  principles  of  the  science  which  we  are  considering,  and  left  posterity 
for  ever  to  regret  that  the  fuller  prosecution  of  it  was  swallowed  up  in 
the  variety  and  vastness  of  his  other  studies. 

THE   INTERVAL  BETWEEN   THE   TREATY  OF  UTRECHT, 
1713,  AND  OF  PARIS,  1763. 

In  1740-43,  Wolff,  a  disciple  of  Leibnitz,  published  the  fruit  of  his 
enormous  labours  in  nine  quarto  volumes,  Jus  Naturae  Methodi  Scientifice 
Pertractatum,  &c.  An  abridgment  of  his  work,  dealing  separately  with 
the  question  of  Jus  Gentium,  subsequently  appeared.  He  prided  him- 
self on  accurately  distinguishing  the  Natural  from  the  Voluntary,  Con- 
suetudinary, and  Conventional  Law  of  Nations.  His  work  had  two 
great  defects;  the  application  of  technical  and  mathematical  terms  to 
moral  subjects,  and  the  assumption  of  the  false  hypothesis  that  there 
existed  de  facto  a  great  republic  of  which  all  nations  were  members. 

(m)  Tn  one  of  his  latest  letters  to  his  brother,  Grotius  says  of  some  one  who 
had  attacked  his  work:  "Non  probat  quod,  in  illis  libris  De  Jure  Belli  ac  Pacis, 
utor  Paganorum  dictis :  vei urn  non  ita  ut  utor,  ut  ilia  sequi  satis  esse  Christianis 
arbitror,  sed  ut  erubescent  Christian!  si  minus  praestent." — H.  Grot.  Epistola;,  Ep. 
546,  p.  920  (Ed.  Amstelod.  1687);  and  see  Proleg.  to  De  Jure  B.  et  P. 

(ra)  Lecture  on  the  Law  of  Nature  and  Nations. 

JULY,  1854.— 2 


5  PHILLIMORE     ON     INTERNATIONAL     LAW. 

The  latter  error,  however,  does  not  in  reality  affect  the  force  of  his 
general  position,  and  exists,  perhaps,  more  in  the  pedantry  of  the  lan- 
guage than  in  the  spirit  of  the  argument  which  he  derives  from  it.  The 
work  of  Wolff  with  all  its  merits — and  it  had  many — would  probably 
Lave  been  both  unread  and  unknown  to  modern  readers,  but  for  his 
abridger  Vattel,  who,  departing  in  some  points  from  his  original,  has 
melted  down  his  ponderous  quartos  into  the  concise,  readable,  practical, 
sensible,  but  superficial  work,  which  still  retains  its  popularity.  I  must, 
however  reluctantly,  pass  by  Montesquieu. 

rj|t  .  -.  *Bynkershoek  ranks  next  to  his  illustrious  fellow-countryman 
L  J  Grotius,  whom  he  delighted  to  call  o  /iwy««,  and  for  whom,  though 
not  unfrequently  dissenting  from  his  opinions,  he  entertained  the  rever- 
ence which  one  great  jurist  feels  for  another.  The  Qusestiones  Juris 
Publici  appeared  in  1737; — this  work,  and  the  two  treatises,  by  the 
same  author,  De  Dominio  Maris  and  Do  Foro  Legatorum,  are  among 
the  most  valuable  authorities  which  this  science  can  claim. 

THE  INTERVAL  BETWEEN  THE  TREATY  OP  PARIS,  1703, 
AND  THE  FRENCH  REVOLUTION,  1789. 

Italy  furnishes  us  with  Lampredi  and  Galliani;  Germany  with  Moser 
and  Martens.  The  latter  has  obtained,  not  undeservedly,  a  place  among 
the  classics  of  International  Law.  But  this  interval  is  chiefly  memorable 
in  its  effect  upon  this  science,  for  the  event  of  the  independence  of  the 
North  American  Republics,  accompanied  by  the  distinct  recognition  of 
the  authority  and  principle  of  Christian  International  Law  in  another 
quarter  of  the  globe,  and  by  a  cultivation  of  that  law  which  has  already 
produced  no  less  eminent  professors  of  it  than  a  Story,  a  Kent,  and  a 
Wheaton. 

FROM  THE  FRENCH  REVOLUTION,  1789,  TO  THE  PRESENT 

TIME. 

Germany  has  furnished  many  writers  upon  International  Law.  Two 
appear  to  me  worthy  of  especial  notice — Kluber,  whose  work,  in  spite 
of  leaning  to  the  doctrines  of  the  Holy  Alliance,  is  of  great  value, — and 
Heffters,  who  is  still  enjoying  the  reputation  which  he  has  acquired. 

England,  to  pass  by  for  the  moment  the  achievements  of  her  distinct 
r:|c  .,  International  profession,  has  made  no  mean  *contributions  to 
J  the  cultivation  of  International  Jurisprudence,  in  the  writings 
of  Bentham,  Ward,  Mackintosh,  Mr.  Manning,  Mr.  Reddie,  Mr.  Wild- 
man,  and  Mr.  Bowyer. 

Pricate  International  Law  (jus  gentium}  has  greatly  flourished,  thanks 
to  the  transfusion  of  Hertius,  Huberus,  Rodenburghius,  Voet,  and  other 
Latin  authors,  into  the  well-arranged  and  carefully-reasoned  works  of 
Story,  Wachter,  Savigny,  and  Faelix;  of  the  first  and  the  last  of  these 
authors  we  have  but  lately  deplored  the  death. 

It  will  be  seen  that  I  have  been  compelled  to  omit  the  mention  of 
many  authors,  whom  I  have  consulted,  whose  names  will  be  found  below 


PREFACE.  XI 

in  the  catalogue  of  authorities,  and  to  whom  I  owe  a  debt  of  much  grati- 
tude. 

HISTORY  OF  INTERNATIONAL  JURISPRUDENCE  IN 
ENGLAND. 

It  remains  only  to  invite  attention  to  a  subject  which,  however  little 
known,  is  not  without  interest  to  the  historian,  the  jurist,  and  the  states- 
man, namely,  the  existence  in  England  of  a  distinct  Bar  for  the  cultiva- 
tion of  International  Jurisprudence,  (o) 

It  cannot  be  denied  that  the  Common  Law  of  England  has  hitherto 
been,  to  a  certain  extent,  like  the  territory  in  which  it  prevails,  of  an 
insulated  and  peculiar  ^character.  It  must  be  acknowledged  that  it  has 
borrowed  less  than  any  other  state  in  Christendom  from  the  jurispru- 
dence of  ancient  and  modern  Rome.  The  fountains  of  wisdom,  experi- 
ence and  written  reason,  at  which  the  European  continent  in  former  and 
America  in  later  times  have  so  largely  drunk,  were  passed  by  in  Eng- 
land with  a  hasty  *and  scanty  draught.  The  Gothic  conquerors  r-^,  .-. 
of  continental  Europe  fell  by  degrees  and  from  a  variety  of  causes  L  -1 
under  the  dominion  of  the  laws  of  the  vanquished.  "Capta  ferum  vic- 
torem  cepit"  was  eminently  true  of  the  restoration  of  the  Civil  Law 
during  the  middle  ages  in  every  country,  but  our  own;  and  yet,  for 
more  than  three  centuries,  England  had  been  governed  by  the  Civil 
Law.  It  is  a  very  remarkable  fact,  that,  from  the  reign  of  Claudius  to 
that  of  Honorius  (a  period  of  about  360  years),  her  judgment-seats  had 
been  filled  by  some  of  the  most  eminent  of  those  lawyers(^)  whose 
opinions  were  afterwards  incorporated  into  the  Justinian  compilations. 
But  all  germs  of  such  jurisprudence  would  have  perished  with  every 
other  trace  of  civility  under  the  rude  incursions  of  Saxons  and  Danes, 
had  not  the  tribunals  of  the  clergy  afforded  them  shelter  from  the  storm,  (g) 
Occasionally,  too,  some  maxims  of  the  Roman  Law,  admitted  either 
from  their  intrinsic  merit,  or  through  the  influence  of  the  clergy,  en- 
riched the  then  meagre  system  of  English  law.  The  Notrman  invasion 
was  attended  with  a  memorable  change  in  the  constitution  as  it  then 
existed.  The  Bishop  and  the  Sheriff  had  heretofore  sat  together  in  the 
Court  of  Justice,  administering  with  equal  jurisdiction  the  law  upon 
temporal  and  spiritual  offences;  by  the  charter  of  William  the  Conqueror, 
the  Ecclesiastical  was  separated  from  the  Civil  Court.  This  division  has 
continued  (with  the  exception  of  a  temporary  reunion  in  the  reign  of 
Henry  I.)  till  the  present  period;  the  Ecclesiastical  tribunal  deciding, 
^according  to  the  rules  and  practice  of  the  Civil  and  Canon  Law,  ^  ..-, 
generally,  on  all  matters  relating  to  the  Church,  to  the  spiritual  L 
discipline  of  the  laity,  and  among  other  questions  of  a  mixed  nature, 

(o)  The  following  sketch,  with  slight  alterations,  has  appeared  in  a  letter  from 
the  author  to  Mr.  Gladstone,  published  in  1848. 

(p)  Papinian,  Paulus,  and  Ulpian.  Vide  Duck  De  Usu  ac  Autor.  Juris  Romani, 
1.  ii.  c.  8,  pars  secunda,  s.  7. 

(q)  Blackstone,  vol.  iv.  410;  Preface  by  Dr.  Burn  to  his  Ecclesiastical  Law; 
Millar's  Historical  View  of  the  English  Government,  vol.  iii.;  Burke's  Fragment 
of  the  History  of  England. 


Xll          PHILLIMORE      ON      INTERNATIONAL       LAW. 

upon  two  of  the  most  important  kind,  namely,  tbe  contract  of  marriage 
and  the  disposition  of  personal  property  after  death. (r)  It  is  not  neces- 
sary to  dwell  on  the  original  reasons  for  assigning  these  mixed  subjects 
to  the  jurisdiction  of  the  Spiritual  Courts.  It  was  an  arrangement  at 
the  time  almost  universally  prevalent  in  Christendom. 

The  Ecclesiastical  Courts,  however,  were  not  the  only  tribunals  in 
which  the  Roman  law  was  administered.  In  the  High  Court  of  Admi- 
ralty^) (established  about  the  time  of  Edward  I.)  and  in  the  Courts  of 
the  Lord  High  Constable  and  the  Earl  Marshal  (the  Courts  of  Honour 
and  Chivalry),  the  mode  of  proceeding  was  regulated  by  the  same  code. 

The  Courts  of  Equity  also  borrowed  largely,  and  for  a  long  time  almost 
exclusively,  from  the  same  jurisprudence.  Almost  every  Lord  High 
Chancellor  from  Beckett  to  Wolsey — that  is,  from  the  Conquest  to  the 
Reformation — was  an  ecclesiastic;  and  it  was  a  matter  of  course,  that, 
like  every  eminent  ecclesiastic  of  those  days,  he  should  be  well  skilled 
in  the  Civil  and  Canon  Law.  Indeed,  it  was  chiefly  because  they  were 
deeply  versed  in  this  jurisprudence,  though  partly,  no  doubt,  because 
their  general  attainments  were  far  superior  to  those  of  the  lay  nobility, 
.-^  .....  that  the  dignitaries  of  the  Church  were  usually  (M)  employed  *in 
•J  the  foreign  negotiations  of  this  period. (v)  Nor  can  it  be  denied 
by  the  most  zealous  admirer  of  our  municipal  law  that,  during  the  period 
which  elapsed  from  the  reign  of  Stephen  to  Edward  I.,  the  Judges  of 
Westminster  Hall  had  frequent  recourse  to  the  Justinian  Code;  for  in 
truth  the  writings  of  Fleta  contain  many  literal  transcripts  of  passages 
taken  from  the  Digest  and  the  Institute?. (z) 

Lastly,  in  the  Courts  of  the  two  Universities  the  same  system  pre- 
vailed. Universities,  which  are  not  the  least  remarkable  institutions  of 
Christendom,  had  indeed  originally  been  founded  for  the  express  pur- 
pose of  teaching  this  science,  and  even  in  this  country,  where  the  feudal 
law  so  largely  prevailed,  had  succeeded  in  kindling  into  a  flame  the  pre- 
cious spark  which  the  schools  of  the  cloisters  and  the  learning  of  the 
clergy  had  preserved  from  total  extinction. (#) 

I  pass  now*  to  the  epoch  of  the  Reformation.  On  the  Continent, 
where  the  civil  law  was  the  basis  of  all  municipal  codes,  the  study  of 

(r)  Burn's  Preface,  xvii.  Lyndewodes  Provinciale,  pp.  96-7,  261,  316  (Ed. 
1679,  Oxford.) 

(s)  Blackstone,  vol.  iii.  p.  68;  Millar's  English  Government,  vol.  xi.  p.  338. 

(u)  Kurd's  Dialogues,  Moral  and  Political,  vol.  ii.  p.  183 ;  Duck  de  Usu,  &c. 
Juris  Civilis,  p.  364. 

(v)  By  the  Statutes  of  York  Cathedral  express  provision  is  made  for  the  absence 
of  the  Dean  when  employed  beyond  seas  in  the  service  of  the  State.  The  Bishop 
of  Bristol,  who  was  also  Lord  Privy  Seal,  was  one  of  the  negotiators  of  the  Treaty 
of  Utrecht;  the  last  instance,  I  believe,  of  the  kind. 

(z)  Millar,  p.  325;  Preface  to  Halifax's  Civil  Law;  Mackintosh's  Law  of  Nature 
and  Nations,  p.  52;  Lord  Holt,  12  Mod.  Rep.  p.  482:  "Inasmuch  as  the  laws  of 
all  nations  are  doubtless  raised  out  of  the  ruins  of  the  Civil  Law,  as  all  govern- 
ments are  sprung  out  of  the  ruins  of  the  Roman  Empire,  it  must  be  owned  that 
the  principles  of  our  law  are  borrowed  out  of  the  Civil  Law,  therefore  grounded 
upon  the  same  reason  in  many  things." 

(y)  See  Lyndwood's  Life,  Biog.  Brit.  Dedication;  Ridley's  View  of  Civil  and 
Ecclesiastical  Law,  p.  118;  Zouche's  Preface  to  his  Treatise  on  the  Punishment 
of  Ambassadors,  &c.,  to  Henry,  Marquis  of  Dorchester;  et  vide  infra. 


PREFACE.  XU1 

this  science  was  scarcely,  if  at  *all,  affected  by  this  memorable  r#  .  -, 
event.  In  England  it  was  otherwise.  The  professors  of  the  L  J 
Civil  and  the  Canon  Law  belonged  chiefly  to  the  Ecclesiastical  Courts, 
and  were  associated  in  the  minds  of  the  people  partly  with  the  exactions(z) 
of  Empson  and  Dudley  in  the  preceding  reign,  and  partly  with  the  au- 
thority of  the  Pope.  Severe  blows  were  dealt  at  the  former,  which  were 
aimed  solely  at  the  latter  system. 

"The  books  of  Civil  and  Canon  Law  were  set  aside  to  be  devoured 
with  worms  as  savouring  too  much  of  Popery,"  says  the  learned  Ayliffe 
in  his  history  of  the  University  of  Oxford  during  the  Visitation  of  1547. (a) 
And  Wood,(i)  after  stating  "That  as  for  other  parts  of  learning  at  Ox- 
ford, a  fair  progress  was  made  in  them,"  observes,  "The  Civil  and  Canon 
Laws  were  almost  extinct,  and  few  or  none  there  were  that  took  degrees 
in  them,  occasioned  merely  by  the  decay  of  the  Church  and  power  of 
the  Bishops." 

In  1536,  Thomas  Cromwell,  Chancellor  of  the  University  of  Cam- 
bridge, Secretary  of  State,  and  Vice-gerent  of  the  King  in  Spirituals, 
was  appointed  (by  the  King's  seal  used  for  causes  ecclesiastical)  Visitor 
of  that  University;  by  the  same  instrument,  he  promulgated,  in  the  name 
of  the  King,  certain  injunctions,  of  which  the  fifth  was — 

"That  as  the  whole  realm,  as  well  clergy  as  laity,  had  renounced  the 
Pope's  right  and  acknowledged  the  King  to  be  the  supreme  head  of  the 
Church,  no  one  should  thereafter  publicly  read  the  Canon  Law,  p^  -. 
nor  should  any  degree  in  that  Law  be  conferred."(c) 

About  the  same  time,  or  rather  earlier,  similar  injunctions  were  issued 
to  the  University  of  Oxford — these  are  preserved  in  the  State  Paper 
Office,  and  the  corresponding  injunction  to  the  one  just  mentioned  is  as 
follows : — 

"Quare  volumus  ut  deinceps  nulla  lectio  legatur  palam  et  public^  per 
Academiam  vestram  totam  in  jure  Canonico  sive  Pontificio,  nee  aliquis 
cujus  conditionis  homo  gradum  aliquem  in  studio  illius  juris  Pontificii 
suscipiat,  aut  in  eodem  in  posterum  promoveatur  quovis  modo."  These 
injunctions  (for  there  never  was,  as  is  commonly  believed,  any  statutable 
provision  on  the  subject)  underwent  some  modification  from  the  regula- 
tions of  Edward  VI.  In  1535,  Henry  VIII.  appointed  certain  Visitors, 
the  chief  of  whom  were  Richard  Layton  and  John  London,  LL.D.,  to 
visit  the  University  of  Oxford;  these  Visitors  joined  a  Civil  to  the  Canon 
Law  Lecture  in  every  Hall  and  Inn. 

In  1549,  a  Visitation  of  the  University  of  Cambridge  took  place  under 
the  auspices  of  the  Protector  Somerset.  Bishop  Ridley  was  appointed 
to  be  one  of  the  Visitors,  and  one  of  the  professed  objects  of  this  Visita- 

(z)  Empson  and  Dudley  justified  their  extortions  by  citations  from  the  Civil 
Law.  See  Kurd's  Dialogues,  Moral  and  Political,  vol.  ii.  p.. 211,  though  they  con- 
tain a  very  superficial  and  very  imperfect  sketch  of  the  fortunes  of  the  Civil  Law 
in  England.  (a)  Ayliffe's  Oxford,  vol.  i.  p.  188. 

(6)  Wood's  Hist,  and  Antiquities  of  the  University  of  Oxford,  vol.  ii.  b.  i.  s. 
Ixxix.  (Ed.  Gutch.) 

(c)  Strype's  Ecclesiastical  Memorials,  vol.  i.  c.  xxix.  App.  No.  Ivii.  Iviii.; 
Cooper's  Annals  of  the  University  and  Town  of  Cambridge,  p.  375. 


XIV  PHILLIMORE     ON     INTERNATIONAL     LAW. 

tion,  according  to  Bishop  Burnet,(c7)  was  to  "convert  some  fellowships 
appointed  for  encouraging  the  study  in  Divinity  to  the  study  of  the  Civil 
Law;  in  particular,  Clare  Hall  was  to  be  suppressed.  Bishop  Ridley 
found  his  task  very  difficult  and  odious,  and  wrote  to  the  Protector  that, 
rj|f  ...  to  diminish  the  number  of  divines  went  against  his  conscience. 
L  J  *Soruerset  replied,  "We  should  be  loth  anything  should  be  done 
by  the  King's  Majesty's  Visitors  otherwise  than  right  and  conscience 
might  allow  and  approve ;  and  visitation  is  to  direct  things  for  the  better, 
not  the  worse;  to  ease  consciences,  not  to  clog  them;"  and  further,  "my 
Lord  of  Canterbury  hath  declared  unto  us,  that  this  maketh  partly  a 
conscience  unto  you  that  Divines  should  be  diminished;  that  can  be  no 
cause;  for  first,  the  same  was  met  before  in  the  late  King's  time  to  unite 
the  two  Colleges  together,  as  we  are  sure  ye  have  heard,  and  Sir  Edward 
North  can  tell,  and  for  that  cause  all  such  as  were  students  of  the  Law, 
out  of  the  newly-erected  Cathedral  Church,  were  disappointed  of  their 
livings,  only  reserved  to  have  been  in  that  Civil  College.  The  King's 
Hall  being  in  a  manner  all  Lawyers,  Canonists  were  turned  and  joined 
to  Michael  House,  and  made  a  College  of  Divines,  wherewith  the  num- 
ber of  Divines  was  much  augmented,  Civilians  diminished.  Now  at  this 
present  also,  if  in  all  other  Colleges  where  Lawyers  be  by  the  Statutes 
or  the  King's  injunctions,  ye  do  convert  them  or  the  more  part  of  them 
to  Divines,  ye  shall  rather  have  more  Divines  upon  this  change  than  ye 
had  before.  The  King's  College  should  have  six  Lawyers;  Jesus  Col- 
lege some;  the  Queen's  College  and  others,  two  apiece;  and,  as  we  are 
informed  by  the  late  King's  injunctions,  every  College  in  Cambridge 
one  at  the  least.  All  these  together  do  make  a  greater  in  number  than 
the  Fellows  of  Clare  Hall  be,  and  they  now  made  Divines,  and  the  sta- 
tutes in  that  reformed  Divinity  shall  not  be  diminished  in  number,  but 
increased,  as  appeareth,  although  these  two  Colleges  be  so  united.  And 
we  are  sure  ye  are  not  ignorant  how  necessary  a  study  that  study  of  Civil 
r  ..-,  Law  is  to  all  Treaties  with  Foreign  Princes  and  *  Strangers, 
J  and  how  few  there  be  at  this  present  to  the  King's  Majesty's  ser- 
vice therein,"  &c. 

Queen  Elizabeth,  among  the' Statutes  which  she  promulgated  for  the 
University  of  Cambridge,  and  which  have  been  recently  published  by 
Dr.  Lamb,  enacted  one,  De  Temporibus  Lectionum  et  Libris  praclegendis 
(c.  iv.),  in  which  it  is  ordered,  "Theologicus  prselector  tantum  sacras 
literas  doceat  et  profiteatur.  Jurisconsultus  Pandectas,  Codicem,  vcl 
Ecclesiastica  regni  Jura  quse  nos  edituri  sumus  et  non  alia  praeleget." 
Since  the  reigns  of  Stephen  and  Henry  II.,  when  Vacarius  first  read 
lectures  at  Oxford  on  the  Civil  Law,  the  Universities  have  made  it  their 
legitimate  boast  that  the  study  of  the  Roman  Law  found  its  shelter  and 
encouragement  within  their  pomoeria.  The  history  of  almost  every  col- 
lege will  show  that  the  promotion  of  this  study  was  an  object  which  its 
founder  had  at  heart.  The  statutes  promulgated  after  the  Reformation, 
during  the  royal  visitations  of  the  Tudors,  as  has  already  been  shown, 
most  carefully  provided  for  the  furtherance  of  the  same  end.  The  sta- 

(d)  Burnet,  vol.  ii.  part  ii.  p.  222. 


PREFACE.  XV 

tutes  of  Edward  VI.  define  more  closely  the  knowledge  requisite  for  a 
Doctor  of  Civil  Law,  and  set  forth  the  usefulness  of  such  knowledge  to 
the  Church  and  State,  as  follows:  "Doctor  Legum — Doctor  mox  a  doc- 
toratu  dabit  operam  legibus  Anglise,  ut  non  sit  imperitus  earum  legum 
quas  habet  sua  patria,  et  differentiam  exteri  patriique  juris  noscat,  et  in 
solemnibus  comitialibus  qusestionibus  unus  qui  id  maxime  certissiineque 
sciat  facere  ad  finem  qusestionum  quid  in  illis  jus  civile,  quid  ecclesiasti- 
cum,  quid  regni  Anglice  jus  teneat,  defineat,  deter minetque."(e) 

*In  truth,  the  Universities  were  doubly  interested  in  the  pre-,-^  ...-. 
servation  of  this  study;  first,  because  the  statutes,  both  those  ofL 
the  University  and  of  the  College,  must,  in  cases  of  doubt,  which  not 
unfrequently  arise,  receive  their  interpretation  from  the  Canon  and  Civil 
Law  ;  the  founders  of.  Colleges  (Chicheley  and  Wykeham  for  example) 
were  often  deeply  versed  in  both  branches  of  jurisprudence,  and  in  cases 
tried  before  the  Visitors  of  Colleges,  many  of  the  arguments  have  been 
drawn  from  these  sources ;  but,  secondly,  inasmuch  as  the  degrees  con- 
ferred at  the  Universities  were  the  necessary  passport  to  the  College  of 
Advocates  at  Doctors'  Commons. 

Of  the  five  professorships(/)  which  Henry  VIII.  founded  on  the 
spoils  of  the  Church,  one  was  instituted  and  endowed  at  each  University 
for  teaching  the  Civil  Law.  At  Oxford,  the  lay  prebend  of  Shipton  was 
attached  to  the  Professorship,  and  in  Charles  II.' s  reign  this  endowment 
was  expressly  recognized  and  confirmed  as  an  exception  to  the  general 
law  laid  down  in  the  Statute  of  Uniformity.  The  foundation  of  these 
Professorships  in  some  measure  counterbalanced  the  injury  which  the 
Civil  Law  received  from  the  discredit  into  which  the  Common  Law  had 
fallen. (#)  But  this  was  not,  I  think,  the  sole  or  the  principal  circum- 
stance which  kept  alive  at  this  time  the  knowledge  of  this  jurisprudence. 

About  this  period  a  great  and  important  change  had  begun  to  take 
place  in  the  relations  of  the  European  communities  towards  each  other, 
which  rendered  the  preservation  *of  the  study  of  the  civil  law  of  ^  .  -, 
great,  and  indeed  indispensable  necessity  to  these  islands.  Dur-  L 
ing  the  reign  of  the  Tudors,  the  English  had  been  compelled,  by  a  mul- 
titude of  concurring  causes  (far  too  many' for  enumeration  in  these  pages,) 
to  abandon  their  hopes  of  permanent  conquests  in  France ;  nevertheless, 
at  this  very  period,  Great  Britain  began  to  assume  that  attitude  with 
respect  to  foreign  powers,  which,  from  the  days  of  Lord  Burleigh  to  Mr. 
Canning,  it  has  been  the  constant  endeavour  of  her  wisest  and  greatest 
statesmen  to  enable  her  to  maintain.  She  became  an  integral  part,  in 
spite  of  her  "salt-water  girdle" (A),  of  the  European  system,  and  daily 

(e]  These  statutes  are  copied  from  Dr.  Lamb's  book,  but  they  are,  mutatis  mu- 
tandis, the  same  as  those  given  to  Oxford,  save  that  Oxford  has  some  post-staluta, 
•which  Cambridge  has  not.  Twyne's  Collect,  vol.  iv.  p.  144,  in  Turr.  Schol.  Oxon.; 
Lamb's  Documents  from  MS.  Library,  C.  C.  C.  C.,  p.  127;  see  also  a  similar  sta- 
tute of  Elizabeth's,  323. 

(/)  Divinity,  Hebrew,  Greek,  Civil  Law,  Medicine,  founded  1540,  confirmed 
1546.  John  Story  appears  to  have  been  the  first  Professor  at  Oxford  appointed 
with  a  fixed  salary. — Wood,  Hist.  &  Ant.  of  Oxford,  vol.  ii.  pt.  ii.  pp.  840,  859  (Ed. 
Gutch.) 

(g)  Luther  openly  burnt  at  Wittenburgh  the  books  of  the  Canon  Law. — Robert- 
son's Charles  V.  b.  ii.  (A)  Cymbeline,  act  iii.  sc.  1. 


XVI  PHILLIMORE     ON     INTERNATIONAL     LAW. 

more  and  more  connected  her  interest  with  that  of  the  commonwealth  of 
Christendom.  Every  fresh  war  and  revolution  on  the  Continent,  every 
political  and  religious  movement,  rendered  that  interest  indissoluble. 

The  closer  the  bond  of  international  intercourse  became,  the  more 
urgent  became  the  necessity  for  some  International  Law,  to  whose  deci- 
sions all  members  of  the  commonwealth  of  Christendom  might  submit. 
The  rapid  advance  of  civilization,  bringing  with  it  an  increased  appreci- 
ation of  the  blessings  of  peace,  and  a  desire  to  mitigate  even  the  neces- 
sary miseries  of  war,  contributed  to  make  this  necessity  more  sensibly 
felt.  A  race  of  men  sprang  up,  in  this  and  in  other  countries,  whose 
noble  profession  it  became  to  apply  the  laws  of  natural  justice  to  nations, 
and  to  enforce  the  sanction  of  individual  morality  upon  communities. 
But  the  application  of  these  laws  and  sanctions  to  independent  states, 
and  still  more  any  approach  towards  securing  obedience  to  them,  was  no 
p,,  ..  easy  achievement.  No  one  nation,  it  was  *obvious,  had  any  right 
-I  to  expect  another  to  submit  to  the  private  regulations  of  her 
municipal  code;  and  yet,  according  to  the  just  and  luminous  observa- 
tion of  Sir  James  Mackintosh,  "  In  proportion  as  they  approached  to  the 
condition  of  provinces  of  the  same  empire,  it  became  almost  as  essential 
that  Europe  should  have  a  precise  and  comprehensive  code  of  the  law  of 
nations,  as  that  each  country  should  have  a  system  of  municipal  law.(i') 

It  was,  as  has  been  said,  soon  after  the  era  of  the  Reformation  that  the 
science  of  International  Law  began  to  flourish  on  the  Continent ;  and  it 
has  been  said  that  this  epoch  was  on  the  whole  unfriendly  to  its  study  in 
this  island.  It  remains  to  show  by  what  means  any  vestiges  of  it  have 
been  preserved ;  and  how  a  profession,  whose  duty  it  was  to  be  "  lawyers 
beyond  seas," (A;)  has  been  maintained  in  these  islands,  where  honour  and 
emolument  have  ever,  with  few  exceptions,  attended  the  knowledge  and 
practice  of  a  distinct  and  isolated  system  of  municipal  law. 

Long  before  the  Reformation  there  existed  an  ancient  society  of  Pro- 
fessors and  Advocates,  not  a  corporate  body,  but  voluntarily  associated 
for  the  practice  of  the  Civil  and  Canon  Law.  In  1587,  Dr.  Henry  Her- 
vey,  Master  of  Trinity  Hall  in  the  University  of  Cambridge,  purchased 
from  the  Dean  and  Chapter  of  St.  Paul's,  for  the  purpose  of  providing  a 
fixed  place  of  habitation  for  this  society,  an  old  tenement,  called  Mount- 
joy  House,  on  the  site  of  which  the  College  of  Advocates  at  Doctors' 
Commons  now  stands.  In  this  sequestered  place  the  study  and  practice 
of  laws  proscribed  from  Westminster  Hall,  took  root  and  flourished. 
rsfe  ...  *The  Tudors,  who,  with  all  their  faults,  were  unquestionably 
J  the  most  accomplished  and  lettered  race  which  as  yet  has  occu- 
pied the  English  throne,  always  looked  with  a  favourable  eye  upon  civi- 
lians, employed  them  in  high  offices  of  state,  and  set  especial  value  on 
their  services  in  all  negociations  with  foreign  countries.  Few,  if  any, 
matters  of  embassy  or  treaty  were  concluded  without  the  advice  and 
sanction  of  some  person  versed  in  the  Civil  Law.  The  enmity  of  Henry 
VIII.  to  the  Canon,  as  has  been  observed,  materially  injured  the  pro- 

(i)  Lecture  on  the  Law  of  Nature  and  Nations,  p.  13. 
(A)  Ayliffe's  Parergon  Juris  Canonici,  Introduction. 


PREFACE.  XV11 

fession  of  the  Civil  Law ;  but  this  was  a  result  neither  contemplated  nor 
desired  by  that  monarch.  He  founded,  as  has  been  said,  a  Professorship 
of  Civil  Law  at  both  Universities,  and  in  many  respects  befriended  the 
maintenance  and  culture  of  this  science.  In  1587,  Albericus  Gentilis,(?) 
an  illustrious  foreigner,  was  appointed  to  the  Professorship  of  Civil  Law 
at  Oxford;  his  work,  De  Jure  Belli,  was  in  truth  the  forerunner  of 
Grotius.  According  to  the  emphatic  language  of  the  learned  Fulbeck, 
he  it  was  "  who  by  his  great  Industrie  hath  quickened  the  dead  body  of 
the  civil  law  written  by  ancient  civilians,  and  hath  in  his  learned  labours 
expressed  the  judgment  of  a  great  state,  with  the  soundness  of  a  deep 
phylosopher,  and  the  skill  of  a  cunning  civilian.  Learning  in  him  hath 
showed  all  her  force,  and  he  is  therefore  admirable  because  he  is  abso- 
lute."^) 

During  the  earlier  period  of  the  Tudor  sway,  ecclesiastics,  many  of 
them  of  high  renown,  were  advocates  of  the  civil  law,  but  towards  the 
close  of  Elizabeth's  reign  the  *profession  became,  and  has  ever  ^       .., 
since  been,  composed  entirely  of  lay  members. (n)     During  this  L 
reign  a  nice  question  of  International  Law  was  raised  in  the  case  of  the 
Bishop  of  Ross,  ambassador  to  Mary  Queen  of  Scots,  and  Elizabeth  sub- 
mitted to  Drurye,  Lewes,  Dale,  Aubrey,  and  Johnes,  advocates  in  Doc- 
tors' Commons,  that  most  difficult  and  important  question  as  to  the  pro- 
priety and  lawfulness  of  punishing  an  ambassador  for  exciting  rebellion 
in  the  kipgdom  to  which  he  was  sent.      Civilians  were  also  consulted  as 
to  the  power  of  trying(o)  the  unhappy  Mary  herself;  and  Mr.  Hallam 
seizes  on  the  facts,  with  his  usual  sagacity,  to  demonstrate  that  the  sci- 
ence of  International  Law  was  even  at  this  period  cultivated  by  a  distinct 
class  of  lawyers  in  this  kingdom.     James  I.,  who,  besides  his  classical 
attainments  imbibed  a  strong  regard  for  the  Civil  Law  from  his  native 
country,  protected  its  advocates  to  the  utmost  that  his  feeble  aid  would 
extend. (p)     To  this  monarch  Sir  Thomas  Ridley  dedicated  his  View  of 
the  Civil  and  Ecclesiastical  Law,  a  work  of  very  considerable  merit  and 
of  great  learning;  it  had  for  its  object' to  demonstrate  the  pettiness  and 
unreasonableness  of  the  jealousy  with  which  the  common  lawyers  had 
then  begun  to  regard  the  civilians,  and  the  law  which  they  administered 
at  Doctors'  Commons — and  it  appears  to  have  been  by  *no   ^       ...-, 
means  unattended  with  success ;  for  it  was  perhaps  a  conse-  L 
quence  of  this  able  work  that,  about  the  year  1604,  each  of  the  two  Uni- 

(1}  He  came  from  the  University  of  Perugia,  died  1609. — Wood's  Hist,  and  Antiq. 
of  Oxford,  vol.  ii.  pt.  ii.  p.  858  (Ed.  Gutch.) 

(m)  A  Direction  or  Preparative  to  the  Study  of  the  Law,  f.  266  (Lond.  1620, 
8vo.)  Irving's  Introduc.  to  the  Civil  Law,  s.  97. 

(n)  An  unsuccessful  attempt  was  made  in  Highmore's  case  (8  East's  Reports,  213) 
to  obtain  a  mandamus  from  the  archbishop  commanding  the  Dean  of  the  Arches 
to  admit  Dr.  Highmore  a  member  of  the  College  of  Advocates.  This  was  in  1807. 

(o)  Constitutional  History,  vol.  i.  pp.  218,  219  ;  Strype,  360-362. 

(p)  Cowell,  who  was  Professor  of  Civil  Law  at  Cambridge,  had  acquired  a  pro- 
found knowledge  of  this  law,  and  had  in  consequence  been  chosen  Master  at  Trinity 
Hall  (an  office  at  this  moment  filled  by  the  learned  Judge  of  the  Arches,)  published 
a  dictionary  of  law,  in  imitation  of  Calvin's  Lexicon  Juridicum,  a  work  of  much 
learning,  but  containing  extravagant  dicta  about  the  king's  prerogative.  James 
shielded  him  from  the  wrath  of  Coke. 


XVlll  PHILLIMORE    ON    INTERNATIONAL    LAW 

versities  was  empowered  by  royal  charters  to  choose  two  members  to 
represent  them  in  Parliament,  and  by  the  same  Charters  they  were  admo- 
nished to  select  such  as  "were  skilful  in  the  imperial  Laws. "(5-) 

The  reign  of  the  First  Charles  produced  two  Civilians  of  great  emi- 
nence, whose  reputation,  especially  that  of  the  latter,  was  as  great  on  the 
Continent  as  in  these  islands — Arthur  Duck  and  Richard  Zouche.  The 
former  steadlily  adhered  to  the  fortunes  of  his  unhappy  sovereign  ;  and 
his  work,  De  Usu  ac  Authoritate  Juris  Civilis,  has  never  ceased  to  main- 
tain its  deserved  authority.  Zouche,  who  held  several  high  appointments, 
submitted  to  the  authority  of  the  Parliament. (/•)  In  1653,  the  famous 
case  of  the  Portuguese  ambassador  happened:  Don  Pantaleon  de  Sa, 
having  deliberately  murdered  an  English  subject  in  London,  took  refuge 
in  the  house  of  his  brother,  the  Portuguese  ambassador.  That  high 
functionary  insisted  on  the  exemption  of  his  brother  from  punishment  on 
account  of  the  inviolable  character  which  the  law  of  nations  impressed 
upon  the  dwelling  of  an  ambassador.  Cromwell,  however,  caused  him 
to  be  tried  before  a  commission  composed  of  Sir  H.  Blunt,  Zouche,  Clerk 
and  Turner,  Advocates  of  Civil  Law,  and  others ;  before  whom  he  was 
convicted  of  murder  and  riot,  and  for  these  offences  was  executed  at  Ty- 
P#  .  -|  burn.  On  this  occasion,  Zouche  wrote  a  very  *able  and  learned 
"J  treatise  entitled,  "  A  Dissertation  concerning  the  Punishment  of 
Ambassadors  who  transgress  the  Laws  of  the  Countries  where  they 
reside,"  &c.  This  civilian  was  also  the  author  of  several  other  treatises 
on  public  law,  the  most  celebrated  of  which  was  entitled,  Juris  inter 
Gentes  Quasstiones,  a  book  which  is  to  this  day  of  high  authority  and 
constant  reference  by  all  jurists  both  in  Europe  and  America. 

During  the  reign  of  Charles  II.,  various  causes  conspired  to  extend 
and  strengthen  the  influence  of  the  Civilians.  The  restoration  of  the 
orders  and  discipline  of  the  Church — the  rapid  growth  of  commerce  and 
its  consequences,  augmentation  of  personal  property  and  increase  of 
shipping — the  creation  of  a  navy  board, (s)  and  widely  spreading  relations 
with  foreign  states — the  two  Dutch  wars,  and  the  personal  merits  of  the 
great  Civilian  of  the  day,  Sir  Leoline  Jenkins — all  contributed  to  pro- 
duce this  result. 

"If,"  says  Sir  Robert  Wiseman,  Advocate-General,  writing  in  1680, 
"  we  look  no  farther  back  than  twenty  years  ago,  we  shall  remember  the 
Civil  Law  did  so  far  spread  itself  up  and  down  this  nation,  that  there  was 
not  any  one  county  which  had  not  some  part  of  the  government  thereof 
managed  and  exercised  by  one  or  more  of  that  profession,  besides  the 
great  employment  and  practice  it  had  in  the  Courts  in  London.  So  that 
it  being  thus  incorporated,  and,  as  I  may  say,  naturalised  by  ourselves 
into  this  Commonwealth,  it  ought  not  to  be  reputed  or  looked  upon  by  us 
a  stranger  any  longer." (/) 

(q)  Vide  infra,  pp.  49,  50. 

(r)  Zouche  had  received  a  patent  from  King  James,  assigning  to  him  a  stipend 
of  40Z.  per  annum,  and  all  emoluments  and  privileges  enjoyed  by  "  Albericus 
Gentilis,  Frauncis  James,  and  John  Budden"  A  copy  of  this  patent  is  to  be  found 
in  Rymer's  Foedera.  (s)  Vide  Pepys'  Memoirs,  passim. 

(t)  The  extract  is  taken  from  a  treatise  called  The  Law  of  Laws,  or  the  Excellency 
of  the  Civil  Law. 


PREFACE.  XIX 

*I  come  now  to  the  last  period,  that  which  elapsed  between  .-£  -, 
the  Revolution  of  1680  and  the  present  time.  During  this  in-  L 
terval  the  profession  of  the  Civil  Law  has  been  sustained  by  a  succes- 
sion of  advocates  and  judges,  who  may  challenge  comparison  with  their 
brethren  of  Westminster  Hall,  and  who  have  done  good  service  to  the 
State,  both  in  her  domestic  tribunals,  in  her  courts  of  the  law  of  nations, 
and  in  her  pacific  intercourse  with  foreign  nations.  Nobody  acquainted, 
with  the  history  of  our  country  since  the  Revolution,  can  be  wholly  igno- 
rant of  Sir  Leoline  Jenkins,  Sir  George  Lee,  Sir  Gr.  Hay,(«)  Sir  William 
Wynne,  Dr.  Lawrence,  and  Lord  Stowell. 

The  biography  of  Sir  Leoline  Jenkins  contains  a  history  of  the  foreign 
affairs  of  this  kingdom  from  the  breaking  out  of  the  first  Dutch  war 
(1664)  to  the  Peace  of  Nimeguen  (1676-7,)  which  he  negociated  in  con- 
cert with  his  illustrious  colleague  Sir  W.  Temple.  He  filled  various  high 
offices,  those  of  Member  of  Parliament,  Judge  of  the  High  Court  of 
Admiralty,  Judge  of  the  Prerogative  Court  of  Canterbury,  Principal  of 
Jesus  College,  Oxford,  Ambassador,  Secretary  of  State. 

Throughout  the  works(v)  of  this  great  jurist  are  scattered  tracts  upon 
various  questions  of  Public  and  International  Law,  rich  in  deep  learning 
and  sound  reasoning,  and  consequently  forming  a  mine  from  which  all 
subsequent  jurists  have  extracted  materials  of  great  value.  His  ac- 
quaintance with  the  Civil  Law  was  *deep  and  accurate,  as  he.-^  .-. 
had  opportunities  of  evincing  upon  several  occasions;  and  heL 
often  lamented,  we  learn  from  his  biographer,  that  the  Civil  Law  "  was 
so  little  favoured  in  England,  where  all  other  sciences  met  with  a  suitable 
encourageruent."(:r) 

"His  learned  decisions,"  I  quote  from  the  same  source,^)  "rendered 
Lia  name  famous  in  most  parts  of  Europe  (there  being  at  this  time  almost 
a  general  war,  and  some  of  all  nations  frequently  suitors  to  this  court), 
and  his  answers  or  reports  of  all  matters  referred  to  him,  whether  from 
the  Lords  Commissioners  of  Prizes,  Privy  Council,  or  other  great  officers 
of  the  kingdom,  were  so  solid  and  judicious  as  to  give  universal  satisfac- 
tion, and  often  gained  the  applause  of  those  who  dissented  from  him, 
because  they  showed  not  only  the  soundness  of  his  Judgment  in  the  par- 
ticular matters  of  his  profession,  Init  a  great  compass  of  knowledge  in 
the  general  affairs  of  Europe,  and  in  the  ancient  as  well  as  modern  prac- 
tice of  other  nations.  Upon  any  questions  or  disputes  arising  beyond 

(u)  Vide  "Walpole's  History  of  Last  Ten  years  of  George  II.,  vol.  ii.,  for  an  ac- 
count of  Dr.  Hay's  eloquence. 

(v)  I  believe  that  the  Colleges  of  Jesus  and  All  Souls  contain  MSS.  yet  unpub- 
lished of  Sir  L.  Jenkins,  which,  it  is  to  be  hoped,  will  one  day  see  the  light. 

(x)  Life  of  Sir  L.  Jenkins,  p.  xi.  preface. 

(y)  Ib.  p.  xiii.  and  vol.  ii.  p.  741.  He  advised  the  Duke  of  York  as  to  his  title 
to  the  Seigneury  of  Aubigne,  on  the  death  of  the  Duke  of  Richmond,  vol.  ii.  p. 
704.  He  advised  upon  the  claim  of  the  Crown  of  England  to  the  dominion  of  the 
narrow  seas  and  the  homage  due  to  her  flag ;  upon  the  Electoral  Prince  Palatine's 
settlement;  on  the  effect  of  a  settlement  of  property  made  by  Maurice  Prince  of 
Orange  ;  as  to  the  succession  of  the  personal  estate  of  the  Queen  Mother  of  France, 
and  on  many  other  cases  of  great  importance  and  delicacy,  in  which  the  know- 
ledge of  a  civilian  and  publicist  was  required.  See  vol.  ii.  pp.  663.  673,  674,  709, 
&c. ;  see  also  Temple's  Memoirs. 


XX  PHILLIMORE     ON    INTERNATIONAL    LAW. 

sea  between  his  Majosty.'s  subjects  and  those  of  other  Princes,  they  often 
had  recourse  to  Dr.  Jenkins.  Even  those  who  presided  in  the  seats  of 
foreign  Judicatures  in  some  cases  applied  to  him  to  know  how  the  like 
^  ..-,  points  had  *been  ruled  in  the  Admiralty  here,  and  his  sentences 
J  were  often  exemplified  and  obtained  as  precedents  there,  &c." 
"For  his  opinion,  whether  in  the  Civil,  Canon,  or  Laws  of  Nations, 
generally  passed  as  an  incontrovertible  authority,  being  always 
thoroughly  considered  and  judiciously  founded.  "(z) 

The  Law  which  governs  the  disposition  of  the  personal  estates  of  in- 
testates, commonly  called  the  Statute  of  Distributions,  (a)  was  framed  by 
Sir  L.  Jenkins,  principally  upon  the  model  of  the  118th  Novel  of  Jus- 
tinian. 

It  was  also  by  the  influence  of  this'  distinguished  member  of  their 
body,  that  after  the  Fire  of  London  the  Advocates  of  Civil  Law  obtained 
a  share  of  certain  immunities  enjoyed  by  other  branches  of  the  Bar.  The 
Rescript  of  Charles  II.  on  the  subject  begins,  "Charles  R.  The  Society 
of  the  Doctors  at  Civil  Law,  Judges  and  Advocates  of  our  Court  now 
settled  at  Doctors'  Commons,  in  London,  having  to  their  great  charges 
rebuilt  tho  same,  &c.  &c.  And  we  knowing  the  usefulness  of  that  pro- 
fession for  the  service  of  us  and  our  kingdom  in  many  affairs,  found 
just  cause  to  assert  their  exemption  from  payment  of  taxes,  burdens,  and 
impositions  in  the  same  manner  as  the  Societies  of  the  Serjeants'  Inn 
are  and  have  used  to  be." 

The  death  of  Jenkins  happened  soon  after  the  accession  of  James  II. 
After  the  abdication  of  that  monarch  the  Civilians  were  consulted  upon 
a  very  nice  question  of  International  Law,  to  which  reference  is  made  at 
length  in  this  work.  (6)  In  the  reign  of  Anne,  Sir  John  Cooke,  a  dis- 
tinguished  Civilian,  and  Dean  of  the  Arches,  *was  one  of  the 
Commissioners  for  the  Treaty  of  the  Union  with  Scotland  :  and 
everybody  acquainted  with  the  treaty  of  Utrecht  is  aware  that  the  Civi- 
lians were  continually  consulted  by  the  Crown  upon  the  framing  of  the 
different  Articles  contained  in  it.  Thus,  the  Queen,  in  her  instructions 
to  Lord  Bolingbroke,  "  whom  we  have  appointed  to  go  to  France,"  speak- 
ing of  the  exchange  or  alienation  of  Sicily  by  the  House  of  Savoy,  ob- 
serves, "  As  for  the  second  point  which  you  are  to  adjust,  as  far  forth  as  is 
possible,  we  have  directed  what  has  been  prepared  by  the  Civilians  upon 
this  subject  to  be  put  into  your  hand."(c)  The  reigns  of  the  first  two 
Georges  produced  Sir  George  Paul,  Sir  Henry  Penrice,  and  the  two 
Bettesworths,  Judges  of  great  learning  and  ability;  but  I  pass  on  to  the 
date  of  1729,  when  Sir  George  Lee  first  entered  upon  his  career  of  dis- 
tinction. This  able  Civilian  was  an  active  enemy  of  Sir  Robert  Wai- 
pole;  he  was  also  Treasurer  to  Frederick  Prince  of  Wales,  and  deservedly 
venerated  for  the  learning,  accuracy,  and  clearness  of  his  decisions  in  the 
Prerogative  and  Arches  Courts,  in  both  of  which  tribunals  he  presided 
as  Judge.  But  he  enjoys  also  no  inconsiderable  European  fame;  for  he 
was  the  principal  composer  of  a  State  Paper(<f)  on  a  great  question  of 

(z)  P.  xviii.  (a)  22  &  23  Car.  II.  c.  10.  (b)  Vide  post,  pp.  308-46. 

(c)  Bolingbroke's  Correspondence,  vol.  i.  p.  4,  note. 

(d)  It  is  printed  in  the  Collectanea  Juridica. 


..... 
J 


PREFACE.  XXI 

International  Law — the  Answer  to  the  Memorial  of  the  King  of  Prussia, 
presented  to  the  Duke  of  Newcastle  by  Mr.  Mitchell,  and  to  borrow  the 
words  of  his  biographer, (e)  "  it  has  universally  been  received  and  acknow- 
ledged throughout  Europe  as  a  correct  and  *masterly  exposi-  r>  .  -, 
tion  of  the  nature  and  extent  of  the  jurisdiction  exercised  over  L 
the  ships  and  cargoes  of  Neutral  Powers  by  Courts  of  the  Law  of  Na- 
tions, established  within  the  Territories  of  belligerent  States.  Montes- 
quieu characterises  it  as  reponse  sans  replique,  and  Vattel  terms  it  un 
excellent  morceau  dit  droit  des  gens."  To  that  memorial  indeed  another 
name  was  affixed,  the  name  of  one  who  was  not  indeed  a  member  of  the 
College  of  Advocates,  but  who  was  destined  to  be  among  the  few  lumi- 
naries of  Jurisprudence  in  our  island,  and  able  to  vie  with  those  which 
have  shone  upon  the  Continent — of  one  whose  boast  it  was  that  he  had 
early  and  late  studied  the  Civil  Law,  and  who  built  upon  this  avowed 
basis,  and  on  his  knowledge  of  the  writers  on  Public  Law,  that  goodly 
fabric  of  Commercial  Jurisprudence  which  has  since  indeed  received  ad- 
dition and  ornament,  but  which  owed  its  existence  to  a  mind  saturated 
with  the  principles  of  the  Roman  Law.  This  great  man  was  then  Mr. 
Murray,  afterwards  Lord  Mansfield.  For  comprehensive  grasp  of  mind, 
for  knowledge  of  general  principles  of  law,  and  of  their  particular  appli- 
cation in  various  countries,  this  illustrious  magistrate  was  second  only  to 
one,  with  the  mention  of  whom  I  shall  presently  close  my  brief  notice  of 
distinguished  Civilians. (/) 

But,  to  be  historically  correct,  I  should  first  advert  to  a  circumstance 
of  great  importance  in  its  relation  to  the  history  of  the  Advocates  of 
Civil  Law.  Sir  G.  Lee  died  in  1756;  in  1768,  George  III.  granted  to 
this  Society  a  formal  charter,  by  which  it  became  a  legally  recognised 
body  corporate.  The  charter  recites,  that  the  members  of  *the  rf  -, 
College  at  Doctors'  Commons  had  devoted  themselves  to  the  L 
study  of  the  Civil  and  Canon  Law,  and  were  either  advocates  or  judges 
in  the  Ecclesiastical  and  Admiralty  Courts,  and  that  they  had  for  "cen- 
turies past  formed  a  voluntary  society,"  &c.,  and  prayed  the  king  to  be 
pleased,  by  letters -patent  under  the  great  seal,  "  to  incorporate  them  and 
their  successors  by  the  name,  style,  and  title  of  the  College  of  Doctors 
of  Law,  exercent  in  our  Ecclesiastical  and  Admiralty  Courts."  The 
charter  goes  on  to  say — "  We  having  taken  the  said  petition  into  our 
royal  consideration,  and  being  willing  to  give  all  fitting  encouragement 
to  the  said  study,"  &c.,  and  then  proceeds  to  constitute,  with  every 
imaginable  formality  of  expression,  the  College  a  legal  corporate  society, 
with  visitors  and  power  of  making  bye-laws,  &c.  I  return  to  the  men- 
tion of  that  Civilian  whose  reputation  as  a  jurist  over-topped  even  the 
great  name  of  Lord  Mansfield.  In  1779,  Dr.  Scott  enrolled  his  name 
among  the  advocates  of  Doctors'  Commons ',  he  is  now  better  known  by 

(e)  See  Dr.  Philliraore'a  Preface  to  Sir  G.  Lee's  Reports,  p.  xvi.  See  also  an 
elaborate  panegyric  by  Dr.  Harris,  in  the  Preface  to  his  translation  of  the  Institutes 
of  Justinian. 

(/)  Want  of  space  compels  me  reluctantly  to  omit  all  mention  of  such  judges 
as  Sir  E.  Simpson  and  Sir  G.  Hay. 


XXU  PHILLIMORE    ON    INTERNATIONAL    LAW. 

his  well-deserved  title,  Lord  Stowell,  of  whom  it  may  be  indeed  em- 
phatically said,  that  he  left 

"  Clarum  et  venerabile  nomen 
Gentibus" 

And  the  remainder  of  the  line  is  scarcely  less  his  due, 
"  Et  multum  nostrae  quod  profuit  urbi." 

The  history  of  Lord  Stowell  is  familiar  to  the  present  generation. 
His  great  natural  endowments — his  long  residence  at  the  University — 
the  admirable  use  he  made  of  the  opportunities  which  such  residence 
affords  for  storing  the  mind  with  all  kinds  of  knowledge — his  vast  and 
varied  intellectual  attainments — the  mature  age  at  which  they  were 
r  ...  brought  into  the  fray  of  active  life — the  *keen  insight  into  hu- 

J  man  nature — the  judicious  character  of  his  wise,  patient,  and 
deliberative  mind — the  marvellous  power  of  lucid  arrangement,  educing 
order  and  harmony  from  the  most  perplexed  and  discordant  matter — the 
clear  and  beautiful  robe  of  felicitous  language  and  inimitable  style  which 
clothed  all  these  high  attributes — the  awful  crisis  and  convulsion  of  the 
civilized  world  which  called  for  the  exercies  of  these  powers  in  the  judg- 
ment-seat of  International  Law  at  the  very  time  he  was  elevated  to  it — 
the  renown  of  his  decisions  over  both  hemispheres^) — the  great  age  to 
which  he  enjoyed  the  full  possession  of  his  faculties — all  this  is  matter 
of  too  recent  history  to  require  a  more  detailed  enumeration.  »  Testes 
vero  jam  omnes  orae  atque  omnes  exterae  gentes  ac  nationes :  denique 
maria  omnia  turn  universa,  turn  in  singulis  oris,  omnes  sinus  atque  por- 
tus."(/i)  With  this  justly  venerated  name  I  close  my  catalogue  of  Eng- 
lish Civilians,  omitting,  not  without  regret,  all  mention  of  Dr.  Strahan, 
the  translator  of  Domat;  of  Dr.  Harris,  a  Civilian  of  great  eminence, 
the  translator  of  The  Institutes;  of  that  learned  and  able  Judge,  Sir 
William  Wynne ;  and  of  Dr.  Lawrence,  the  well-known  friend  of  Burke. 
To  the  latter  indeed  ample  justice  has  been  done  by  Lord  Brougham  in 
his  Characters  of  British  Statesmen. (i\ 

I  have  endeavourad  to  give  a  sketch  of  the  fortunes  of  International 
Law  in  this  country,  and  to  illustrate  thorn  by  some  comments  on  the 
most  distinguished  disciples  of  that  jurisprudence.  My  sketch  has  been 
necessarily  meagre  and  imperfect;  it  would  otherwise  have  transgressed 
fJ!f  ....  *the  limits  of  my  Preface  ;  and  I  have  been  compelled,  espe- 
-I  cially  during  the  latter  period,  to  pass  by  in  silence  many 
English  Civilians  who  would  have  deserved  commemoration  in  a  larger 
work. 

CONCLUSION. 

In  conclusion,  the  author  trusts  that,  in  any  judgment  which  may  be 
passed  upon  this  work,  it  will  be  recollected,  that  it  is  an  endeavour, 
upon  a  larger  scale  than  has  hitherto  been  attempted  in  England,  to 

(g)  Vide  passim  the  American  Reports.         (7i)  Cicero,  pro  Lege  Manilla. 
(i)  See  also  Homer's  Memoirs,  vol.  i. 


PREFACE.  XXlil 

reduce,  in  some  measure  at  least,  to  a  system,  the  principles  and  prece- 
dents of  International  Law;  and  that  this  is  a  task  which  the  very 
nature  of  the  materials  renders  extremely  hard  :  inasmuch  as  it  is  very 
difficult  so  to  arrange  them,  as  to  avoid  on  the  one  hand  a  vague  unsatis- 
factory generality,  and  on  the  other  an  appearance  of  precise  mathemati- 
cal accuracy,  of  which  the  subject  is  not  susceptible. 

The  author  is  anxious  to  express  a  sincere  hope  that  others  of  his 
fellow  countrymen,  profiting  by  what  may  be  useful,  avoiding  what  may 
be  erroneous,  supplying  what  may  be  defective  in  his  labours,  may  by 
them  be  stimulated  to  undertake  and  execute  a  better  treatise  upon  the 
same  subject. 

It  is  by  such  gradual  additions  and  painful  accumulations  that  the 
edifice  of  this  noble  science  may  one  day  be  completed,  and  the  Code  of 
International  Jurisprudence  acquire  in  all  its  branches  the  certainty  and 
precision  of  Municipal  Law;  such  a  result  would  be  greatly  instrumental 
in  procuring  the  general  recognition  and  ultimate  supremacy  of  Right 
in  the  intercourse  of  nations,  and,  *with  the  blessings  of  God,  rj. 

I     XXXVlll  I 

in  hastening  the  arrival  of  that  period,  when  the  aspiration  L 
of  the  Philosopher  and  the  vision  of  the  Prophet  shall  be  accomplished. 
"  Nee  erit  alia  lex  Roma  alia  Athenis ;  alia  nunc,  alia  posthac,  sed  et 
omnes  gentes  et  omni  tempore  una  lex  et  sempiterna  et  immutabilis 
continebit."  (Cicero,  De  Re  Publica,  1.  3,  c.  22.)  "Nation  shall  not 
lift  up  sword  against  nation,  neither  shall  they  learn  War  any  more." 
(Isaiah,  c.  ii.  v.  4.) 


CONTENTS. 


PART    I. 


The  pages  referred  to  are  those  between  brackets  [  ]. 

CHAPTER    I. 
INTRODUCTION.    FOUNDATIONS  OF  INTERNATIONAL  JURISPRUDENCE.    Pp.  1 — 10. 

1.  The  Laws  which  govern  International  Relations. 

2.  The  Subjects  of  these  Laws. 

3.  The  Objects  of  these  Laws. 

4.  Certain  Subjects  requiring  a  particular  Consideration. 

5.  Legal  Means  of  enforcing  International  Public  Rights. 

6.  Jus  Privatum  inter  Gentes,  or  Comity. 

CHAPTER    II. 
PLAN  OF  THE  WORK.    Pp.  10 — 14. 

CHAPTER    III. 
SOURCES  OF  INTERNATIONAL  LAW.    Pp.  14 — 29. 

1.  Natural  Law. 

2.  Revealed  Law. 

3.  Custom. 

4.  Treaty. 

5.  Divine  and  Natural  Law.     How  applied  to  Christian  and  Heathen  States. 

Effect  of  Christianity  upon  International  Law. 

CHAPTER    IV. 

REASON  OF  THE  THING.    Pp.  29 — 37. 

Application  of  Natural  and  Revealed  Law  to  States.    Use  of  the  Roman  Law. 

CHAPTER    V. 

CONSENT  OF  NATIONS.    Pp.  37 — 43. 

How  manifested.     By  positive  Convention.     By  Custom. 

JULY,  1854.— 3 


XXvi  PHILLIMORE     ON    INTERNATIONAL    LAW. 

CHAPTER    VI. 
HISTORY.    Pp.  43 — 58. 

Repositories  of  International  Law.    History.    Treaties.    Proclamations.    Marine 
Ordinances.     Decisions  of  Prize  Courts. 

CHAPTER    VII. 

WRITERS  ON  INTERNATIONAL  LAW.    Pp.  58 — 64. 
Their  Authority  and  Use. 

CHAPTER    VIII. 

RECAPITULATION  OF  SOURCES  OF  INTERNATIONAL  LAW.    Pp.  64 — 72. 
Instance  of  the  Application  of  the  Law  as  derived  from  its  various  Sources. 

CHAPTER    IX. 
OBJECTION  THAT  THERE  is  NO  LAW  BECAUSE  NO  SUPERIOR.    Pp.  72 — 75. 

Not  tenable.  Confusion  of  Ideas.  All  moral  Obligations  equally  Perfect, 
although  Means  of  compelling  Performance  may  be  Imperfect.  Inter- 
national Law  recognised  as  a  Matter  of  Fact.  Recognition  of  it  incorporated 
into  Municipal  Law  of  many  States. 


PART     II. 

CHAPTER    I. 

SUBJECTS  OF  INTERNATIONAL  LAW.    STATES.    Pp.  75 — 88. 
What  is  a  State.    Barbary  States.    The  Ottoman  Porte. 

CHAPTER  II. 

DIFFERENT  KINDS  OF  STATES.  Pp.  88 — 120. 

Principal  Division. 

1.  One  or  more  States  under  one  Sovereign. 

2.  Several  States  under  a  Federal  Union. 

1.  States  under  one  Sovereign, 
a.  Single  States. 

0.  States  united  reali  unione. 
y.  Case  of  Poland. 

t.  States  united  personali  unione. 

£.  Protected  States  retaining  International  Personality. 

7j.  Protected  States  having  lost  International  Personality. 

Ionian  Isles. 
6.  European  Free  Towns  and  Republics. 

1.  The  case  of  Belgium. 
<f.  The  case  of  Greece. 


CONTENTS.  XXV11 

X.  Feudal  States.     Turkish  Provinces. 
P.  The  Case  of  Egypt. 

CHAPTER   III. 
STATES  UNDER  A  FEDERAL  UNION.    Pp.  120 — 122. 

1.  Germanic  Confederation. 

2.  Swiss  Confederation. 

3.  North  American  United  Republics. 

4.  South  American  United  Republics. 

CHAPTER   IV. 

GERMAN  CONFEDERATION.    Swiss  CONFEDERATION.    Pp.  122 — 138. 
.  History  and  Character  of. 

CHAPTER    V. 

UNITED  STATES  OF  NORTH  AMERICA.    CENTRAL  AND  SOUTH  AMERICAN 
REPUBLICS.    Pp.  138 — 147. 

History  and  Character  of. 

CHAPTER   VI. 

EXTINCTION  OF  A  STATE.     P.  147. 

A  State  may  lose  its  International  Personality.     How. 

CHAPTER    VII. 
CHANGES  IN  A  STATE.    Pp.  148 — 159. 

Doctrine  of  Roman  Jurists — of  Savigny  •,  Hooker  ;  Grotius  ;  De  Mably  ; 
D'Aguesseau  ;  Montesquieu ;  Heineccius ;  Vattel ;  Bynkershoek ;  Kent ; 
Wheaton  ;  Puffendorf ; — all  support  the  Doctrine  that  Changes  in  a  State 
do  not  affect  previously-existing  International  Obligations.  If  the  Terri- 
tory of  a  State  be  divided,  Rights  and  Duties  are  apportioned.  Opinion  of 
Kent  and  Story.  Recent  Case  of  Belgium. 


PART   III. 

CHAPTER  I. 
OBJECTS  OF  INTERNATIONAL  LAW.    Pp.  159 — 162. 

1.  Rights  stricti  juris.     2.  Usages  of  Comity.    Importance  of  observing  Dis- 
tinctions between. 


XXviii       PHILLIMORE    ON    INTERNATIONAL    LAW. 

CHAPTER   II. 

EIGHTS  OP  INDEPENDENCE  AND  EQUALITY.    Pp.  162 — 164. 

I.  Rights  of  Independence. 

1.  Free  Choice,  &c.  of  Government.  2.  Territorial  Inviolability.  3.  Self- 
Preservation.  4.  Commerce.  5.  Right  of  Acquisition.  6.  Juris- 
diction over  Persons  and  Things  within,  and,  by  way  of  Exception, 
without  her  Territory.  Christian  Strangers  in  Mahometan  Territories. 
Extradition  of  Criminals. 

II.  Limitation  of  foregoing  Rights. 

Doctrine  of  Intervention. 

III.  Rights  of  Equality. 

1.  Right  of  protecting  Subjects  abroad.     2.  Rights  to  Recognition. 

3.  Right  to  external  Marks  of  Honour.    4.  Right  to  make  Treaties. 

CHAPTER  III. 
RIGHT  TO  A  FREE  CHOICE  OF  GOVERNMENT.    P.  164. 

CHAPTER    IV. 
TERRITORIAL  INVIOLABILITY.    NATIONAL  POSSESSIONS.    Pp.  165 — 167. 

1.  Rivers  and  Lakes.    2.  Open  Sea.    3.  Narrow  Seas.    4.  British  Seas.    5.  Straits. 
6.  Portions  of  the  Sea. 

CHAPTER    V. 
PROPERTY  OF  A  STATE.    RIVERS.    Pp.  167 — 194. 

General  Law  respecting.  Stipulations  in  the  Treaty  of  Vienna  as  to  free  Navi- 
gation of  great  Rivers.  The  Scheldt.  The  Rhine  and  Tributaries.  The 
Vistula.  The  Douro.  The  Danube.  The  Mississippi.  The  St.  Lawrence. 
The  open  Sea.  Nootka  Sound.  The  North  Sea.  Rights  of  Fishing. 

CHAPTER    VI. 

NARROW  SEAS,  AS  DISTINGUISHED  FROM  THE  OCEAN.    Pp.  194 — 200. 

British  Channel.     Mare  liberum  of  Grotius.     Mare  clausum  of  Selden.     Hol- 
land.    William  III.     Sir  L.  Jenkins.     Bynkershoek.    Lord  Stowell. 

CHAPTER    VII. 
NARROW  SEAS.    STRAITS.    Pp.  200 — 210. 

British  Channel.     Great  and  Little  Belt.     Straits  of  Messina.     Dardanelles. 
Hellespont.     Fisheries. 

CHAPTER    VIII. 

PORTIONS  OF  THE  SEA.    Pp.  210 — 218. 

Rule  of  Territory  within  Marine  League  or  Cannon  shot.   Hovering  or  Revenue 
Laws.    Landlocked  Seas. 


CONTENTS.  XXIX 


CHAPTER    IX. 

PECULIAR  CASE  OF  THE  ISTHMUS  OP  CENTKAL  AMERICA.    Pp.  218 — 225. 

British  Treaty  with  United  States  of  North  America.     Question  respecting 
British  Settlements  in  Honduras. 

CHAPTER    X. 
SELF-PRESERVATION.    Pp.  225 — 235. 

Means  of  Security.  National  Safety.  Lawful  to  prevent  as  well  as  repel  Attack. 
Rules  and  Illustrations.  When  Conduct  of  individual  Subjects  implicates  the 
State.  Doctrine  ofpatientia  and  receptus. 

CHAPTER    XL 

RIGHT  TO  A  FREE  DEVELOPMENT  OF  NATIONAL  RESOURCES  BY  COMMERCE. 

Pp.  235—237. 

Former  Claims  of  Spain  and  Portugal.     Colonial  Monopoly. 


CHAPTER    XII. 
RIGHT  OF  ACQUISITION.    Pp.  237 — 265. 

Doctrine  of — 1.  Possessio,  and  2.  Dominium  acquisition.  1.  Original.  2.  De- 
rivative. Different  kinds  of  Original  Acquisition:  1.  Occupation;  2.  Acces- 
sion; 3.  Prescription.  Occupation,  Elements  of,  in  Discovery,  Use.  Settle- 
ment. Illustrations.  Extent  of  Occupation.  The  Middle  Distance.  Law 
of  Contiguity.  Fluvial  Accessions.  Case  of  the  Anna.  Boundaries.  Bull 
of  Alexander  VI.  Penn.  Cabot.  Falkland  Islands.  Treaty  of  Utrecht. 
Oregon. 


CHAPTER    XIII. 

PRESCRIPTION,  DOCTRINE  OF.    Pp.  265 — 282. 
Roman.    Private.    Public.    International  Law  respecting  it. 

CHAPTER    XIV. 
DERIVATIVE  ACQUISITION.    Pp.  282 — 302. 

1.  Facto  nominis.  2.  Facto  legis.  Competent  to  a  State  to  alienate  Property. 
When.  Usufructuary  and  Patrimonial  Dominions.  Case  of  Norway  in  1814. 
International  Transactions  between  State  and  Subjects,  and  State  and  other 
States,  distinguished.  Sovereigns  de  facto  and  dejure.  Doctrine  of  Trans- 
ference or  traditio.  Modes  of  Transference  considered:  1.  Exchange;  2. 
Cession;  3.  Gift;  Case  of  Louisiana;  4.  Election  of  Sovereign;  5.  Marriage 
Contract;  6.  Successio  ab  intestato;  7.  Testamentary  Disposition. 

CHAPTER     XV. 
ACQUISITION  OF  RIGHTS.    P.  302. 

Servitutes  Juris  Gentium:  1.  Servitus  negativa;  2/  Servitus  affirmativa.    As  to 

Persons.    As  to  Places. 


XXX  PHILLIMORE    ON    INTERNATIONAL    LAW. 

CHAPTER    XVI. 
EXTINCTION  OF  DOMINION.    Pp.  307 — 316. 

Maxim  of  "  Quibus  modis  acquirimus  iisdem  in  contrarium  actis  omittimus" 
Protests.    Postliminium.    Property  becoming  extra  commercium. 

CHAPTER   XVII. 

SLAVES  AND  THE  SLAVE  TRADE.    Pp.  316 — 344. 
Man  not  among  the  res  positce  in  commercio. 

1.  Slavery  of  the  White  Man.     Captives  in  War.    Barbary  powers.     Byu- 

kershoek's  Opinion.  Lord  Exmouth's  Bombardment  of  Algiers. 
Occupation  of  Algiers  by  France. 

2.  Slavery  of  the  Dark  or  Coloured  Man.    Lord  Stowell's  Opinion  in  favour 

of  slavery.  Slavery  contrary  to  the  Natural  Law  of  Nations.  Treaty  of 
Paris,  1814,  as  to  the  Slave  Trade.  Subsequent  treaties.  Catalogue  of 
existing  Treaties  on  the  subject.  Case  of  the  Queen  v.  De  Serva.  Cases 
of  Shanley  v.  Harvey ;  of  Somerset  the  Negro  ;  of  Forbes  v.  Cochrane  : 
of  Borcaut ;  of  Francisque  ;  of  the  Pole  ;  of  the  Creole  brig  ;  of  the 
Slave  of  the  the  Spanish  Merchant  in  France. 


CHAPTER   XVIII. 
RIGHT  OP  JURISDICTION  OVER  PERSONS.    Pp.  345 — 361. 

1.  Over  Subjects.  2.  Over  Foreigners  commorant  in  the  Land.  Native  and 
Naturalised  citizens.  Domiciled  Persons.  Naturalisation ;  Laws  of  dif- 
ferent States  respecting.  Jurisdiction  over  Foreigners :  Laws  of  differ- 
ent States  respecting. 

CHAPTER  XIX. 
EXCEPTIONS  TO  THE  TERRITORIAL  RIGHT   OF   JURISDICTION.    Pp.  361 — 379. 

1.  Christian  Sojourners  in  Infidel  Countries.    Echells  du  levant.    British 

Subjects  in  China. 

2.  Foreign  Sovereigns. 

3.  Ambassadors. 

4.  Foreign  Armies. 

5.  Foreign  Ships  :  *.  Ships  of  War ;  £.  Ships  of  Commerce  ;  different  Rules 

respecting. 

Cases  of  The  Exchange,  The  Santissima  Trinidad,  The  Prinz  Frederic,  The 
Newton,  The  Forsattning. 

CHAPTER  XX. 
RIGHTS  OF  JURISDICTION.    PIRATES.    Pp.  379 — 407. 

That  they  are  justiciable  everywhere.  Cases  and  Charges  of  Judges  in  Courts 
of  Admiralty.  Letters  of  Marque  and  Privateers  ;  when  they  are,  and  when 
they  are  not,  considered  as  Pirates  by  International  Law.  Treaties  and  private 
Laws  of  States  respecting  Privateers.  An  abdicated  Monarch  cannot  issue 
Letters  of  Marque.  Case  in  the  Time  of  James  II. 


CONTENTS.  XXXI 


CHAPTER  XXL 
RENVOI.    EXTRADITION.    Pp.  407 — 433. 

1.  The  Right  of  a  State  to  dismiss  Foreigners.    RenvoL 

2.  The  General  Law  as  to  the  Obligation  of  a  state  to  Surrender  Foreigners. 

Extradition. 

3.  Treaties  of  Extradition. 

4.  Statute  Law  of  England  on  this  Subject. 

t 


.    PART    IV. 

CHAPTER  I. 
IKTERVENTION,  PRINCIPLE  OF.    Pp.  433 — 483. 

Analogous  to  Interdict  and  Injunction. 

Opinion  of  Lord  Bacon.     Two  Kinds  of  Intervention. 

I.  Sometimes,  but  rarely,  in  domestic  Concerns  of  Foreign  Nations. 

«t.  When  Institutions  are  inconsistent  with  the  Peace  and  Safety 

of  other  Nations. 

/8.  Rights  and  Duties  of  a  Guarantee. 
y.  Invitation  of  Belligerent  Parties  in  a  Civil  War. 
f.  Protection  of  Reversionary  Rights  or  Interest. 

II.  When  Territorial  Acquisitions  of  a  State  threaten  the  peace  and  Safety 

of  other  States. 

a..  Balance  of  Power,  a  Corollary  of  the  Principle  of  Self-Defence. 
/8.  Intervention  on  religious  Grounds :  when  justifiable.    Treaty 
of  Westphalia.     Case  of  Christian  Subjects  in  the  Ottoman 
Empire. 

Justice  of  the  War  declared  by  England  and  France  against  Russia  in  1854  to 
be  tried  by  Principles  of  International  Law  already  laid  down  in  this  Work. 


LIST    OF    AUTHORITIES 

REFERRED  TO  IN  THIS  VOLUME. 


A. 

^Eschinis  et  Demosthenis  Orationes  duaa  contraries. 

Ahrens,  Cours  de  Droit  naturel,  ou  de  Philosophic  du  Droit  (Brux.  1844.) 

Allgemeine  Geschiehte. 

Amedee  Felix.     (See  Code.) 

Ancillon  iiber  den  Geist  der  Staatsverfassung. 

Annals  of  Congress.     See  Congress.) 

Annuaire  Historique  Universel  (1832). 

"        des  Deux  Mondes  (1850-1-2-3-4). 
Annual  Register. 
Aristoteles,  de  Rhetorica  (London,  1619). 

"  Ethicae. 

B. 

Bacon  (Lord),  Essays :  An  Advertisement  touching  on  Holy  War. 

Barbeyrac.     (See  Grotius  and  Puffendorf.) 

Barbosa,  Collectanea  Doctorum  in  Jus  Pontificium. 

Barnwall  and  Alderson's  Reports. 

Bartolus,  Opera. 

Bingham's  Reports. 

Blackstone's  Commentaries  on  the  Laws  of  England. 

Blume,  Deutsches  Privatrecht. 

Bodinus  de  Republica. 

Boliugbroke's  Letters  on  the  Study  and  Use  of  History. 

"  Letters. 

Bowyer's  Readings  before  the  Society  of  the  Middle  Temple. 
Brockenbrough's  Reports  (American). 
Burke's  Works,  Tracts  on  the  Popery  Laws. 

"        .  "        Thoughts  on  the  French  Revolution. 

"        Letters  on  a  Regicide  Peace. 

"        Reform  of  Representation  in  the  House  of  Commons. 

"       Appeal  from  the  New  to  the  Old  Whigs. 

"        Letter  to  R.  Burke,  Esq. 

"       Speech  on  Motion  relative  to  the  East  India  Company. 

"        Speech  on  the  Conciliation  of  America. 
Barlamaqui,  Principes  du  Droit  Naturel  et  du  Politique  (1747), — French  and 

English  edition  cited. 
Burrow's  Reports. 


XXXIV         PHILLIMORE    ON    INTERNATIONAL    LAW. 

Butler  (Bishop),  (Sermon  III.)  On  Human  Nature. 
Bynkershoek,  Quaestiones  Juris  Public!  (Lug.  Bat.  1767). 

"  "  "      Privati(Lug.  Bat.  1767). 

"  De  Dominio  Marls  (Lug.  Bat.  1767). 

"  De  Foro  Legatorum  (Lug.  Bat.  1767). 


C. 

Cabinet  Library  of  Scarce  and  Celebrated  Tracts  (published  by  Clark,  Edinburgh, 

1837). 

Camdenus  in  vita  Elizabeths,  ad  ann.  1580. 
Canning's  Speeches. 
Carrington  and  Payne's  Reports. 
Casaregis — Discursus  Legates  de  Commercio. 
Cicero  Pro  Cluentio. 

"      De  Republica. 

"      De  Officio. 

"      Pro  Milone. 

"      De  Leg. 

"      De  Finibus. 

"      Orat.  Pro  Balbo. 

"      Pro  Caecina. 
Clarendon  (Lord),  Life  of. 

Code  Civil,  suivi  de  1'Expose  des  Motifs,  par  Locre. 
Codes,  Les  Huit,  Fran9'ais. 
Codes  des  Etrangers,  on  Recueil  des  Lois  et  de  la  Jurisprudence  Anglaise  cea- 

cernant  les  Etrangers  (Felix  Ame'de'e :  Paris,  1849). 
Coke's  Institutes  of  the  Laws  of  England. 

"      Reports. 
Colquohoun's  Civil  Law. 

Congress  Documents ;  Sess.  1827,  1828,  No.  43.     See  Papers.) 
Connecticut  Reports.     (See  Reports.) 
Con&blato  del  Mare. 
Corpus  Juris  Civilis. 
Corpus  Juris  Canonici. 
Correspondence.     (See  Papers.) 
Cranch's  Reports  (American). 
Croke's  Reports. 
Cussy,  De.     (See Martens.) 

D. 

D'Aguesseau,  (Euvres  de  M.  Le  Chancelier. 

Dahlman,  Geschichte  von  Danemark. 

Dallas's  Reports  (American). 

Davis's  (Sir  John)  Reports. 

Decretalia.     (See  Corpus  Juris  Canonici.) 

Decretum.     (See  Corpus  Juris  Canonici.) 

De  Martens  et  De  Cussy,  Recueil  de  Traites  et  de  Conventions. 

Demosthenes  (fi«f '  vtt,pa.7rpt<r  /§st'*r)  K.ATA 

Denisart,  Collection  de  Decisions  Nouvelles. 

Denison's  Crown  Cases  Reserved. 

Digest.     (See  Corpus  Juris  Civilis.) 

Dionysius  Halicarnassensis. 

Dodson's  Reports  (Admiralty.) 

Dohm,  Denkwiirdigkeiten  meiner  Zeit. 

Domat,  Trait6  des  Lois.  t 

Dumont,  Corps  Universel  Diplomatique. 

Duvergier  (M.),  Collection  de.     (1843.) 


LIST     OF     AUTHORITIES.  XXXV 


E. 

East's  Eeports. 

Eden's  Reports  in  Chancery. 

Edinburgh  Review,  No.  LXXXLT. 

Edwards's  Admiralty  Reports. 

Egan's  Law  of  Extradition.     (London,  1846.) 

Eichhorn,  Kirchenrecht. 

Elliot's  American  Diplomatic  Code.     (Washington,  1834.) 

Emerigon,  Contrats  et  des  Assurances.     (Mars,  1783.) 

F. 

Faslix,  Revue  e"trangere  de  Legislation. 

"      De  Droit  International.     (Paris,  1847.) 
Falck,  Dissertatio  Jurid.lnaugur.  de  servo  libertate  donate  si  Europae  solum 

tetigit. 

Farrinacius — Opera. 
Federalist,  the  (American.) 
Fe"nelon,  (Euvres  de. 

Ferrand,  Histoire  des  Trois  D^membrements  de  la  Pologne. 
Ferreiras  (Pinheiro),  Commentaries  on  Vattel. 
Feuerbach,  Lehrbuch. 

Flassan,  Histoire  de  la  Diplomatie  Franchise. 
Forster — Crown  Law.  • 

G. 

Gagern  (Von),  Kritik  des  Volkerrechts. 

Garden  (Le  Comte  de),  Code  Diplomatique  de  1'Europe. 

"  "  Trait6  complet  de  la  Diplomatie  (1833.) 

Gazetteer  of  the  World. 
Gentilis  Albericus,  Hispanicas  Advocationes. 

"  "        De  Legationibus. 

Gentz  (Von),  Fragmente  aus  der  neuesten  Geschichte  des  politischen  Gleich- 

gewichts  in  Europa  :  Schriften. 
Gibbon's  Decline  and  Fall  of  the  Roman  Empire. 

Gilpin's  Opinions  of  the  Attorney-General  of  the  United  States.     (1841  ed.) 
Gothofred  (Jac.),  de  famosis  Latronibus  Investigandis. 
Greenville's  (Lord)  Speech  in  the  House  of  Lords  on  the  Blockade  of  Norway 

May  10th,  1814.     (Hansard's  P.  D.) 

"  "          Speech  in  the  House  of  Peers,  on  the  Motion  of  the  Duke 

of  Bedford,  for  the  Dismissal  of  Ministers,  22d  March, 
1798.  (Published  by  J.  Wright,  Piccadilly.) 

"  "          Speech  in  the  House  of  Lords,  upon  the  Motion  for  an 

Address  to  the  Throne  approving  of  the  Convention  with 
Russia  in  1801.  (Published  by  Cobbett  and  Morgan, 
Pall  Mall,  1802.) 

Grotius,  de  Jure  Beli  et  Pacis — French  translation  and  notes  by  Barbeyrac. 
"        Mare  Liberum. 

Epistolse. 

Guizot,  De  la  Democratic  en  Franc. 
Giinther,  Europaisches  Volkerrecht.     (Altenburg,  1787.) 

H. 

Haggard's  Reports  (Admiralty). 
Kale's  Pleas  of  the  Crown.     (London,  1116.) 
Hallam,  History  of  the  Middle  Ages. 
Handbuch  der  Schweizerischen  Staaten. 


xxxvi        PHILLIMORE    ON     INTERNATIONAL    LAW. 

Hansard's  Parliamentary  Debates. 

Harris  and  Johnson's  Reports  (American.) 

Hawkins's  Pleas  of  the  Crown.     (London,  1716.) 

Heffters,  Europaishe  Volkerrecht  der  Gegenwart.     (Berlin,  1848.) 

Heineccius — Praelectiones  Academical  in  H.  Grotii  De.  J.  B.  et  P.  libros  iii. 

"  Jus  Natura3  et  Gentium. 

Henry  on  Foreign  Law  (the  Judgment  of  the  Court  of  Demarara  in  the  case  of 

Edwin  v.  Forbes).     (London,  Published  by  Sweet,  1823.) 
Herodotus. 
Hertius. 
Hertslet's  Collection  of  Commercial  Treaties  between  Great  Britain  and  Foreign 

Powers. 

Hobart's  Reports. 
Hobbes  (Thomas),  De  Give. 

Homan,  De  Delictis  Peregrinorum,  eaque  puniende  ratione. 
Horner,  Memoirs  of. 

Hooker's  Laws  of  Ecclesiastical  Polity.     (London,  1705.) 
Howell's  State  Trials. 
Huberus,  De  Conflictu  Legum. 
Hugo,  Jus  Civile  Antejustinianeum. 
Hume's  History. 


I. 

Ihering,  Geist  des  Romischen  Rechts. 

Institutiones.     (See  Corpus  Juris  Civilis.) 

Isocrates,  Archidamus,  Orationes  et  Epistolae  (Gr.  et  Lat.). 

J. 

Jacobsen,  Seerecht. 

Jenkins,  Sir  Leoline,  Life  of  (Wynne's  edition). 

Jenkinson,  Treatise  on  the  Government  of  Great  Britain  in  1758. 

Johnson's  (Dr.)  Works:  Thoughts  on  the  Transactions  relating  to  the  Falkland 

Islands. 
Johnson's  Reports  (American). 

"  "       Chancery  (American). 

Jurist,  The  English. 

"        "    American. 

K. 

Kaltenborn,  Volkerrecht. 

Kamptz  (Von),  Neue  Literatur  des  Volkerrecht,  (1817.) 

Kant,  Rechtslehre. 

Keble's  Reports. 

Kent's  Commentaries  on  American  Law. 

Klinkhammers— Disp.  Hist.  Pol.  de  Belli  propter  Success.    Regni  Hispan.  &c., 

(Amstelodami,  1829.) 
Kliiber,  Europaisches  Volkerrecht  (Scaffhausen,  1831). 

"       Oeffentliches  Recht  des  deutschen  Bundes  und  der  Bundesstaaten. 
"       Acten  des  Wiener  Congresses. 

Kluit,  Dissertatio  de  Deditione  Profugorum  (Utrecht,  1829). 
Knapp's  Privy  Council  Reports. 
Koch,  Histoire  abr<$g6e  de  Trace's  de  Paix,  continue  par  Schoell  (ed.Bruxelles). 

"      Tableau  des  Revolutions  de  1'Europe. 

L. 

Lamartine,  Trois  Mois  au  Pouvoir. 


LIST     OP     AUTHORITIES.  XXXV11 

Laws  of  Oleron. 

Leach's  Hawkins's  Pleas  of  the  Crown. 

Leibnitz,  Opera. 

Les  Huit  Codes  Frangais  (Code  d'Instniction  Criminelle(  (Paris,  1834). 

Livius. 

Loccenii  (Jo.),  Jus  Maritimum  Sueciae  (Holm.  1674). 

M. 

Mably,  Droit  Public  de  1'Europe  fonde*  sur  les  Traite's. 
Mackeldey,  Lehrbuch  des  Rom.  Rechts,  and  French  Translation. 
Mackintosh  (Sir  James),  Speech  on  the  Recognition  of  South  American  Re- 
publics. 

"  "  Speech  on  the  Blockade  of  Norway. 

"  "  Discourse1  on  the  Law  of  Nature  and  Nations. 

"  "  Miscellaneous  "Works. 

"  "  Second  Review  of  Burke's  Letter  on  a  Regicide  Peace. 

Manning,  Law  of  Nations. 
Manuel  de  Droit  Public,  par  Snell.     (See  Handbuch.) 

"         Droit  Roman.     (See  Mackeldey.) 
Martens  (De),  Recueil  de  Traites  (Getting.). 
"  Nouveau  Recueil  de  Traites. 

Precis  du  Droit  des  Gens  (Paris,  1831). 
"  Primse  Lineae  Juris  Gentium  (Gott.  1785). 

"  Causes  Celebres. 

"  Erzahlungen  merkwiirdiger  Falle  des  neueren  Europ.  Volker- 

rechts. 

"  Guide  Diplomatique. 

"  et  De  Cussy,  Recueil  de  Trails  et  de  Conventions. 

Masse"  (G.),  Le  Droit  Commercial,  avec  le  Droit  des  Gens  et  le  Droit  Civil 

(1845,  ed.). 
Merlin,  Repertoire  de  Jurisprudence. 

"       Questions  de  Droit» 
Miltitz,  Manuel  des  Consuls  (London,  1839). 
Miruss,  Das  Europaische  Gesandschaftsrecht. 
Molloy,  De  Jure  Maritime  et  Navali. 
Montesquieu,  Esprit  des  Lois. 
Moore,  Privy  Council  Reports. 

Moser,  Versuch  des  neuesten  Europaischen  Volkerrechts. 
Miihlenbruck,  Doctrina  Pandectarum. 

N. 

Nepos  (Cornelius),  De  Vita  Excellentium  Imperatorum  (Delph.  Paris,  16Y5). 
Neyron,  Principes  du  Droit  des  Gens  Europeans. 
Newspapers : — 

Times,  The, 

Globe,  The, 

Morning  Post,  The, 

Morning  Chronicle,  The, 

0. 

Ompteda,  Literatur  des  Volkerrechts,  to  1784,  continued  by  Von  Kamptz  to 

1817. 

Oppenheim,  System  des  Volkerrechts. 
Orient,  La  Question  de  (Paris,  1853.) 
Ortolan,  Diplomatic  de  la  Mer. 

"        Des  Moynes  d'acque"rir  le  Domaine  International,  ou  Proprie'te'  d'Etat 

entre  les  Nations,  &c. 
Ovidius — Fasti. 


XXXV111      PHILLIMORE    ON    INTERNATIONAL    LAW. 


P. 

Papers  relative  to  the  Affairs  of  Greece  and  Belgium,  printed  by  the  Foreign 
Office,  London,  1835. 

Correspondence  relating  to  the  Project  of  annexing  Cuba  to  the  United 
States,  laid  before  Parliament,  April  llth,  1853;  and  especially  the 
English  Foreign  Secretary's  (Lord  John  Russell)  Letter  of  February 
16th,  1853. 

Congress  Documents,  sess.  1827-1828,  No.  43. 
f  American,)  on  the  Navigation  of  the  St.  Lawrence,  sess.  1827-28. 
(British,)  on  the  Navigation  of  the  St.  Lawrence,  No.  45. 
State  (English,)  during  the  war,  London,  1794. 
State    Papers — (British   and   Foreign — Compiled   by  the  Librarian  and 

Keeper  of  the  Papers,  Foreign  Office." — Ridgway  and  Sons,  London.) 
Presented   to   the    House  of  Parliament  by  command  of   Her  Majesty, 

1853,  with  respect  to  British  Subjects  in  China. 
Report  of  the  House  of  Lords  respecting  the  African  Slave  Trade,  July, 

22nd,  1849. 
Report  of  the  Select  Committee  of  the  House  of  Commons  on  the  Slave 

Trade  Treaties,  August  12th,  1853. 

Papers  relative  to  the  Rights  of  Liberated  Africans,  and  the  Prevention 
of  Slave-dealing  at  Sierra  Leone,  laid  before  Parliament,  August  12th, 
1853. 

Protocols  of  Conferences  in  London  relative  to  the  Affairs  of  Belgium. 
Relating  to  the  Latin  and  Greek  Churches,  laid  before  Parliament  in 

1853. 

Correspondence  with  the  Russian  Government  respecting  Obstructions  to 
the  Navigation  of  the  Sulina  Channel  of  the  Danube,  in  Papers  laid 
before  Parliament,  1853. 

Correspondence   between   some    of  the    Continental   Powers  and    Great 
Britain  respecting  the  Foreign  Refugees  in  London,  presented  to  both 
Houses  of  Parliament  by  command  of  Her  Majesty,  1852. 
Pascal,  Pens6es  de. 

Pestel,  De  Necessitate  et  Usu  Juris  Gentium  Dissertatio. 
Peters's  Reports  (American.) 

Phillimore  (R.),  Case  of  the  Caroline  Steamer,  Letter  to  Lord  Ashburton. 
"          Pamphlet  on  the  Case  of  the  Creole. 
"          Pamphlet,  Armed  Intervention  on  the  ground  of  Religion  considered 

as  a  Question  of  International  Law. 
Phillimore  (Dr.),  Preface  to  Sir  George  Lee's  Reports. 
Plato. 

Plutarchus,  Vitae  Parallelae  (Lipsise,  1812.) 
Polybius. 

Portalis.     (See  Code  Civil.) 
Pothier,  CEuvres  de. 
Puchta,  Cursus  der  Institutionen. 

"         Pandekten. 

Puffendorfius,  de  Jure  Naturae  et  Gentium  (London,  Scan.  1672.) 
"  Idem,  French  (Amsterdam,  1712.) 

"  Idem,  English  (London,  1717.) 

Putter  Specimen  Juris  Publici  ac  Gentium  Medii  ^Evi. 
Puttingen  (De,)  Die  gesetzliche  Behandlung  der  Auslander  in  (Esterreich. 


R. 

Raumer  (Von,)  Polens  Untergang,  Histor.  Taschenbuch. 

Rayneval  (Gerard  de,)  Institutions  du  Droit  de  la  Nature  et  dea  Gens  (Paris, 

1851.) 
Reiffenstuel — Jus  Canonicum  Universum. 


LIST    OF    AUTHORITIES.  XXXIX 

Reports,  Barnwell  and  Alderson's. 

Bingham's. 

Brockenbrough's  (American). 

Burrow's. 

Carrington  and  Payne's. 

Coke's. 

Connecticut  (American). 

Cranch's  (American). 

Croke's. 

Dallas's  (American). 

Davis's  (Sir  John). 

Denison's  Crown  Cases  Reserved. 

Dodson's  Admiralty. 

East's. 

Eden's,  in  Chancery. 

Edwards's  Admiralty. 

Haggard's  Admiralty. 

Harris  and  Johnson's  (American). 

Howell's  State  Trials. 

Johnson's  (American). 

"         Chancery  (American). 

Jurist,  The  (English). 
"          (American). 

Keble's. 

Knapp's,  in  Privy  Council. 

Moore's,         ditto. 

Peters's  (American). 

Robinson's  (Sir  Ch.)  Admiralty. 
"  (Dr.  Wm.)       " 

Russell  and  Ryan's  Crown  Cases  Reserved. 

Schoales  and  Lefroy,  in  Chancery  in  Ireland. 

Sergeant  and  Rawle's  (American). 

State  Trials  (Howell's  English). 
"          (Wharton's  American). 

Strange's. 

Sumner's  (American), 

Taunton's. 

Ventris's. 

Vermont's  (American). 

Vezey's  (Sen.). 

"Washington's  Circuit  (American). 

Wheaton's  (American). 
Revue  de  Droit  Fran9ais  et  Etranger. 

"      de  Legislature  et  de  Jurisprudence  (1843),  t.  xvii. 
Ridley,  View  of  the  Civil  Law,  38T. 
Robinson's  (Sir  C.)  Admiralty  Reports. 

"          (Dr.W.)        "  * 

Rocco,  Dell'  Uso  e  delle  Leggi  Due  Sicilie. 
Rulhiere,  Histoire  de  1' An  archie  de  Pologne. 
Russell  and  Ryan's  Crown  Cases  Reserved. 
Russell  on  Crimes  (ed.  1843). 
Rutherforth,  Institutes  of  Natural  Law.  , 

Rymer — Foadera,  Conventiones,  Literae  et  Acta  Publica,  inter  Reges  Anglise  et 
alios  Principes  (London,  1704). 

S. 

Saalfeld,  Handbuch  des  positiven  Volkerrechts. 
Sallustius,  Bellum  Jugurthinum. 
Savigny,  System  des  Romischen  Rechts. 
'•        Recht  des  Besitzes. 


xl  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Schilling,  Pandekten  Recht. 

Schlegel,  Staatsreclit  des  Konigreichs  Danemark,  &c. 
Schmalzgrueber,  Jus  Ecclesiasticum  Universum. 
Schmauss,  Corpus  Juris  Gentium  Academicum. 
"          Einleitung  zu  der  Staatswissenschaft. 
Schmalz,  Das  Europaische  Volkerrecht. 
Schoales  and  Lefroy's  Reports,  Chancery,  in  Ireland. 
Schoell,  Continuation  of  Treaties  by  De  Martens. 
Seldenus — Mare  Clausum. 
Seneca — Epistolse. 

Smith  (Sir  Thomas),  Commonwealth  of  England. 
Spelman,  Glossar.  in  voce  Pirata,  387. 
State  Papers.     (British  and  Foreign — Compiled  by  the  Librarian  and  Keeper 

of  the  Papers,  Foreign  Office — Ridgway  and  Sons,  London.)     (See  Papers.) 
Statutes  at  Large  of  the  United  Kingdom  of  Great  Britain  and  Ireland. 
Stephen's  Commentaries  on  the  Laws  of  England  (3rd  ed.  London,  1853). 
Story,  Commentaries  on  the  Constitution  of  the  United  States. 

"      Conflict  of  Laws. 
Strange's  Reports. 
Sumner's  Reports  (American). 
Suarez,  Tractatus  de  Legibus  et  Deo  Legislatore. 

T. 

Talleyrand  (M.),  Note  to  the  Congress  of  Vienna. 

Taunton's  Reports  (American). 

Taylor's  Civil  Law.     (1756.) 

Temple's  Memoirs.     (1709.) 

Thucydides. 

Tindall  (Matthew,  LL.D.),  an  Essay  concerning  the  Laws  of  Nations  and  the 

Rights  of  Sovereigns. 
Tittman,   Die   Strafrechtspflege  in  volkerrechtlicher  Rucksicht.       (Dresden. 

1817.) 

Troplong,  De  1'Influence  de  Christiauisme  sur  le  Droit  Civil  des  Romains. 
Twiss — Oregon  Question  Examined. 

"        The  Duchies  of  Schelswig  and  Holstein.     (London,  1848.) 

V. 

Valin,  Commentaire  sur  1'Ordonnance  de  la  Marine. 
Vattel,  Droit  des  Gens. 
Ventris's  Reports. 
Vermo.nt  Reports  (American). 
Vezey's  (Sen.)  Reports. 
Voet  (J.),  Comment,  ad  Paudectas. 
"     (Paul)  de  Statutis. 

W. 

Wacksmuth,  Jus  Gentium  apud  Grsecos. 

Waite's  American  State  Papers. 

Wallace  (E.  J.),  Pamphlet ;  the  Oregon  Question. 

Waltershausen,  Urkundliche  Geschichte  des  Ursprunges,  der  Deutschen  Hanse. 

Ward's  Law  of  Nations. 

Warnkonig,  De  Studio  Jur.  Rom.  Utilitate  ac  Necessitate  oratio.     (1817.) 

"  Doctrina  Juris  Philosophica. 

"  Institutisnes  Juris  Romani  Privatae. 

Washington's  Circuit  Reports  (American). 
Wenkius,  Codex  Juris  Gentium. 
Wharton's  State  Trials  of  the  United  States. 
Wheaton's  Histonyof  International  Law.     (1845.) 


LIST    OF    AUTHORITIES.  xi 

Wheaton's  Elements  of  International  Law.     (1836.) 
"         Reports  (American.) 
"        Historic  des  Progrds  du  Droit  des  Gens.     (1853.) 

The  French  Translations  of  these  Treatises  are  constantly  referred 
to  in  this  Work,  because  they  are  of  a  later  date,  and  contain 
additional  matter. 
"        Historic  des  Progr^s  du  Droit  des  Gens  en  Europe  et  en  Amerique 

,      (1853.) 

"        Elements  Du  Droit  International.     (1852.) 
Wicquefort,  1'Ambassadeur  et  Fonctions. 

Wieland,  De  Necessitate  et  Usu  Juris  Gentium,  &c.     (Philadelphia,  1849.) 
Wilkinson's  Dalmatia  and  Montenegro.    (1848.) 
Wiseman's  Excellency  of  the  Civil  Law. 
Wolfius,  Opera. 

Wyck  (H.  A.  M.  Van  Asch)  De  delictis  extra  Regni  teritorium  admissis. 
(Utrecht,  1839.) 

Z. 

Zacharia,  Le  Droit  Civil  Francais.     (1854). 

"      Deutsches  Staats-und  Bundesrecht.     (Getting.  1841.) 
Zouch,  De  Jure  Feciali,  sive  Judicio  inter  Gentes. 
"     De  Jure  Nautico. 


JULY,  1854.— 4 


CASES 


ENGLISH,    SCOTCH,    AND    IRISH    REPORTS. 


The  pages  referred  to  are  those  between  brackets  [  ]. 

A.  Flad  Oyen,  The,  38,  n.  39,  n.  40, 

Anna.  The,  250.  n-  43( 

Forbes  v.  Cochrane,  337. 

B. 

G. 

Bingley's  (Sir  R.)  Case,  388. 

Bond  v.  Hopkins,  36,  n.  Grace'     See  Slave  Grace' 

Bonnet,  Major,  and  others,  Trials 

of  (State),  386.  H- 

Burvot  v.  Barbut,  61.  Hastings,    Warren,    Impeachment 

of,  23. 

C.  Helena,  The,  21.  81. 

Calvin's  Case,  158.  345.  Henrick  and  Maria'  The>  40"  51>  n" 

Codling,  William,  and  others,  Trial    ?™TJ  *'  Adce/>  57'  D> 
of  (State),  389.  ^oop.  The,  51,  n. 

Creole,  The,  335.  337.  344.  414.       HurtlSe  Hane>  The'  23' 

D.  L 

Illeanon   Pirates,    The,    Queen   v. 
Dawson,  Joseph,  and  others,  Trial        Belcher  78 

of  (State),  385,  386.  Indian  Ch'iefj  ^  ^  n 


E.  K. 

East  India  Company  v.  Campbell,    Kinder  v.  Kinder,  42. 

King  v.  Kimberley,  412. 

Edmian  and  Smith's  Case,  388.         Knicht  the  Negro,  Case  of,  336. 
Elsebe,  The,  40,  n. 

L. 

F 

Langhorn  v.  Allnutt,  97. 

Fama,  The,  28,  n.  244.  Le  Case  de  mixt,  Moneys,  69. 


xliv 


PHILLIMORE     ON    INTERNATIONAL    LAW. 


Le  Louis,  The,   38,  211,  n.  216. 

321,  322.  359,  n.  379,  381. 
Lucy,  The,  69,  70. 
Lundy,  Case  of,  412. 

M. 

Madonna  del  Burso,  The,  22,  n. 
Madrazzo  v.  Willis,  321,  n. 
Magellan  Pirates,  The,  391. 
Maria,  The,  32.  36,  n.  40,  41,  42, 

46,  51,  52.  59,  n.  60,  n.  69,  n. 

153.  160,  n.  199. 
Mercurius,  The,  40,  n. 
Mirehouse  v.  Rennell,  36,  n. 
Mure  v.  Kaye,  412. 

P. 

Peach  and  others  v.  Bath,  62. 
Peltier,  Jean,  Trial  of  (State),  417. 
Pilkington  v.  The  Commissioners 

for  Claims  on  France,  70. 
Prinz  Frederick,  The,  370. 
Progress,  The,  40. 

R. 

Recovery,  The,  52. 

Reg.  v.  Serva  and  others,  329,  n. 

333.  381. 
Rex  v.  Lepardo,  358,  n. 

«  v.  Clinton,  430. 

«  v.  Helsham,  358,  n. 


Rex  v.  M.  A.  de  Mattos,  358,  n. 

"   v.  Sawyer,  358,  n. 
Ringende,  Jacob,  The,  41.  50. 

S. 

Santa  Cruz,  The,  40,  41,  42.  50. 
Santa  Anna,  The,  92,  n. 
Serhassan  Pirates,  The,  78.  381. 
Shanley  v.  Harvey,  336. 
Slave  Grace,  The,  322.  335. 
Snipe  and  others,  The,  42.  51.    ' 
Sootragum  Satputty  v.  Sabitra  Dyo, 

35,  n. 
Somerset's  (The  Negro)  Case,  335, 

336,  337. 

T. 

Tandy,  James  Napper,  and  another, 

Trial  of  (State),  413. 
Triquet  and  others  v.  Bath,  62. 
Twee   Gebraeders,   The,  35.    170. 

194.  207,  n.  211. 

V. 

Vint  and  others,  Trial  of  (State) 
417. 

W. 

Walsingham  Packet,  The,  42,  n. 
Wall,  (Governor),  Trial  of  (State), 
358. 


FROM  THE  REPORTS  OF  THE  NORTH  AMERICAN 
UNITED  STATES. 


A. 

Antelope,  The,  77,  321. 


Commonwealth  v.  Deacon,  410. 414. 
v.  De  Longchamps, 


Arrogante  Barcelones,  The,  372. 

C.  D. 

Church  v.  Hubbards,  211,  n.  233.     Dalafield  v.  Hand,  57,  n. 


CASES    CITED. 


xlv 


Desobray  v.  Laistre,  57,  n. 
E. 


S. 


Santissima  Trinidad,  The,  369.  373. 
Santos,  Jose  Ferreire  Jos,  Case  of, 
Exchange,   The.      (See    Schooner        414. 

Exchange.)  Schooner  Exchange,  The,  v.  M'Fad- 

don  and  others,  366,  367.  372. 
G.  374. 

Guinet,  John  Etienne  et  al.,  Trial 
of  (State),  394.  i> 

Terrett  and  others  v.  Taylor  and 
H.  others,  158. 

Henfield,  Gideon,  Trial  ef  (State),    ThomP^  v.  Stewart,  56,  n. 

394. 

Holmes  v.  Jennison,  410.  414. 
Holmes,  Exparte,  414.  United  States   v.  Smith,  380. 

v.  Davis,  410.  413. 

v.  Nash,  429. 


J. 

Jackson  v.  Lunn,  158. 

K. 

Kaine  (Thomas),  Case  of,  430. 
Kelly  v.  Harrison,  158. 

M. 

Monte  Allegro,  The,  372. 

R. 

Rex  v.  Ball,  410.  414. 
Robbing's  Case,  429. 


V. 

Villato,  Francis,  Trial  of  (State), 
394. 

W. 

Washburn,  In  the  matter  of,  410. 

413. 
Williams,  Isaac,  Trial  of  (State), 

394. 

T. 

Yeaton  v.  Fry,  56,  n. 


FROM  THE  FRENCH  REPORTS. 


A  Francisque,  The,  Case  of,  342. 

Anonymous,   Captain   of    English 
merchantman,  Case  of,  375. 

N. 

B.  Newton,  The,  374. 

Bercaut,  Jean,  341. 


F. 

Forsattning,  The,  375. 


S. 


Sally,  The,  374. 


COMMENTARIES 


INTERNATIONAL     LAW 


CHAPTER    I. 

INTRODUCTION. 

I.  THE  great  community,  the  universal  commonwealth  of  the  world, 
comprehends  a  variety  of  individual  members  manifesting  their  indepen- 
dent national  existence  through  the  medium  of  an  organized  government, 
and  called  by  the  name  of  States. (a) 

II.  States  in  their  corporate  capacity,  like  the  individuals  which  com- 
pose them,  are  (subject  to  certain  limitations)  free  moral  agents,  capable 
of  rights,  and  liable  to  obligations. (i) 

(a)  "  Communitas,  quae  genus  humanum  aut  populoa  complures  inter  se  colli- 
gat" — "jura  magnae  universitatis." — Grotius,  de  Jure  Belli  et  Pacis,  Proleg. 
17.  23. 

"  Socie"te"s,  qni  ferment  les  nations — membres  principaux  de  ce  grand  corps 
qui  renferme  tous  les  homines." — D'Aguesseau,  1.  444;  Institution  au  Droit 
Public,  v.,  vi. 

"  Comme  dont  le  genre  humain  compose  une  socie*te"  universelle  divisee  en 
diverses  nations,  qui  ont  leur  gouverneurs  separe"es,"  &c. — Domat,  Traite  des  Lois, 
ch.  11,  s.  39. 

(6)  Dig.  lib.  v.  tit.  i.  76  :  "  (De  inoff.  testamento)  populum  eundem  hoc  tempore 
putari,  qui  abhinc  centum  annis  fuisset,  cum  ex  illis  nemo  nunc  viveret." 

Dig.  lib.  vii.  tit.  i.  56 :  "  (De  usufructu)  an  ususfructus  nomine  actio,  muniti- 
pibus  dari  debeat,  qusestitum  est,  periculum  enim  esse  videbatur  ne  perpetuus 
fieret  quia  neque  morte  nee  facile  capitis  diminutione  periturus  est  ....  sed 
tamen  placuit  dandam  esse  actionem  :  unde  sequens  dubitatio  est  quousque  tuendi 
sunt  municipes  ?  et  placuit  centum  annis  tuendos  esse  municipes,  quia  is  finis  vita 
lonffcevi  hominis  est. 

The  expression  municipes  is  identical  with  municipium. — Savigny,  R.  R.  ii.  249. 

Dig.  lib.  xlvi.  tit.  i.  22  :  "  (De  fidejuss.)  haereditas  personce  vice  fungitur  sicuti 
municipium^  et  curia,  et  societas." 

Dig.  lib.  iii.  tit.  4 :  "  Quod  cujuscunque  universitatis  nomine  vel  contra  rem 
agatur." — Lib.  i.  s.  1,  2. 

Cod.  lib.  ii.  t.  29:  "  De  jure  reipubiicae :  30,  de  administratione  rerumpublica- 
rum;  31,  de  vendendis  rebus  civitatis;  32,  de  debitoribus  civitatum." 

Hobbes,  with  his  usual  perspicuity :  "  Quia  civitates  semel  institutae  induunt 
proprietates  hominum  personales." — De  Civ.  c.  14,  ss.  4,  5. 


48  PHILLIMORE    ON    INTERNATIONAL    LAW. 

r  *o  i       *III.  Sfctes,  considered  in  their  corporate   character,  are  not 
*-      J  improperly  said  to  have  internal  and  external  relations.(c) 

IV.  The  internal  relations  of  states  are  those  which  subsist  between 
governments  and  their  subjects  in  all  matters  relating  to  the  public  order 
of  the  state :  the  laws  and  principles  which  govern  these  internal  rela- 
tions form  the  subject  of  public  jurisprudence,  and  the  science  of  the 
publicist — -jus  gentis  publicum.(d) 

V.  The  internal  relations  of  a  state  may,  generally  speaking,  be  varied 
or  modified  without  the  consent  of  other  states — aliis  inconsultis.(e) 

VI.  But  in  the  great  community  of  the  world,   in  the  society  of 
r  ^q  -,  societies,  states  are  placed  in  relations  with  each  *other,  as  indi- 
L      J  viduals  are  with  each  other  in  the  particular  society  to  which  they 
belong.(/)    These  are  the  external  relations  of  States. 

VII.  As  it  is  ordained  by  G-od  that  the  individual  man  should  attain 
to  the  full  development  of  his  faculties  through  his  intercourse  with  other 
men,  and  that  so  a  people  should  be  formed,^)  so  it  is  divinely  appointed 
that  each  individual  society  should  reach  that  degree  of  perfection  of 
which  it  is  capable,  through  its  intercourse  with  other  societies. 

To  move,  and  live,  and  have  its  being  in  the  great  community  of 
nations,  is  as  much  the  normal  condition  of  a  single  nation,  as  to  live  in 
a  social  state  is  the  normal  condition  of  a  single  man. 

VIII.  From  the  nature  then  of  States,  as  from  the  nature  of  indi- 
viduals, certain  rights  and  obligations   towards  each  other  necessarily 
spring;  these  are  defined  and  governed  by  certain  laws.(/t) 

IX.  These  are  the  laws  which  form  the  bond  of  justice  between 

Puffendorff  adopted  this  view. — Ib.  3.  13. 

Wolff,  Praef. :  "  Enimvero  cum  gentes  sint  persona;  morales  ac  ideo  nonnisi 
subjecta  certorum  jurium  et  obligationum." 

"Puis  done  qu'une  nation  doit  a  sa  maniere  a  un  autre  nation  ce  qu'un  homme 
doit  a  un  autre  homme,"  &c. — Vattel,  Droit  des  Gens,  liv.  ii.  ch.  1,  s.  3 ;  "  Celle 
qui  a  tort  peche  contre  sa  conscience." — Ib.  Pre"lim.  s.  21. 

(c)  D'Aguesseau,  ib. 

Blume,  Deutsches  Privatrecht,  s.  19 :  "  Der  Staat — als  ideale  Person  wird  er 
zum  lebedigen  Trager  des  gesamten  Offentlichen  Rechts." 
Puchta,  Cursus  der  Institutionen,  s.  25,  b.  73,  4. 

(d)  "  The  Law  which  belongeth  unto  each  nation — the  law  that  concerneth  the 
fellowship  of  all." — Hooker's  Ecclesiastical  Polity,  b.  i.  s.  16. 

"  Publicum  jus  est  quod  ad  statum  rei  Romanae  spectat,  privatum  quod  ad  sin- 
gulorum  utilitatem." — Ulpian,  Dig.  lib.  i.  t.  i.  s.  2,  De  Just,  et  Jure. 

(c)  Hoc  autem  non  est  jus  illud  gentium  proprie  dictum ;  neque  enim  pertinet 
ad  mutuam  inter  se  societatem,  sed  ad  cuj  usque  populi  tranquillitatem  :  unde  et 
ab  uno  populo  aliis  inconsultis  mutari  potuit,"  &c. — Grotius,  de  Jure  Belli  et  Pacis, 
lib.  xi.  ch.  8,  s.  2. 

(/)  "  Ex  hoc  jure  gentium  introducta  bella,  discretae  gentes,  regna  condita, 
dominia  distincta." — Dig.  lib.  i.  tit.  i.  s.  5. 

Jus  Gentium  however,  here  as  elsewhere  in  the  Roman  Law,  means  Natural 
Law. — Grot,  de  J.  B.  et.  P.  lib.  ii.  c.  viii.  tit.,  i.  26. 

Savigny,  R.  R.  b.  1.  App.  Taylor's  Civil  Law,  128. 

(ff)  Puchta,  Cursus  der  Institutionen,  i.  s.  25,  b.  73. 

"  That  Law  which  is  of  commerce  between  grand  Societies,  the  Law  of  Nations 
and  of  Nations  Christian." — Hooker,  ib. 

(h)  "  Si  nulla  est  communitas  quae  sine  jure  conservari  possit,  quod  memorabili 
latronem  exemplo  probabat  Aristoteles ;  certe  et  ilia  quas  genus  humanum  aut 
populos  complures  inter  se  colliget,  jure  indiget." — Grot.  Proleg.  23 ;  Vattel, 
Pre"!im,  s.  11. 


INTRODUCTION.  49 

nations,  "  qiiaa  societatis  human®  vinculum  continent,"(t)  and  which  are 
the  subject  of  international  jurisprudence,  and  the  science  of  the  inter- 
national lawyer — -jus  -inter  gentes.^ 

*"  The  strength  and  virtue  of  that  law  (it  has  been  well  said)  r  ^ ,  , 
are  such  that  no  particular  nation  can  lawfully  prejudice  the  same  L  J 
by  any  their  several  laws  and  ordinances,  more  than  a  man  by  his  pri- 
vate resolutions  the  law  of  the  whole  commonwealth  or  state  wherein  he 
liveth ;  for  as  civil  law,  being  the  act  of  the  whole  body  politic,  doth 
therefore  overrule  each  several  part  of  the  same  body,  so  there  is  no 
reason  that  any  one  commonwealth  of  itself  should  to  the  prejudice  of 
another  annihilate  that  whereupon  the  whole  world  hath  agreed. (&) 

X.  To  clothe  with  reality  the  abstract  idea  of  justice,  to  secure  by  law 
within  its  own  territories  the  maintenance  of  right  against  the  aggression 
of  the  individual  wrong-doer,  is  the  primary  object  of  a  State,  the  great 
duty  of  each  separate  society. 

To  secure  by  law,  throughout  the  world, (?)  the  maintenance  of  right 
against  the  aggression  of  the  national  wrong-doer,  is  the  primary  object 
of  the  commonwealth  of  states,  and  the  great  duty  of  the  society  of 
societies.  Obedience  to  the  law  is  as  necessary  for  the  liberty  of  states 
as  it  is  for  the  liberty  *of  individuals.  Of  both  it  may  be  said  r#c -i 
with  equal  truth,  "  legum  idcirco  omnes  servi  sumus  ut  liberi  esse  L  J 
possumus."(m) 

XI.  It  has  been  said  that  States  are  capable  of  rights,  and  liable  to 
obligations ;  but  it  must  be  remembered  that  they  can  never  be  the  sub- 
jects of  criminal  law.(rc)     To   speak  of  inflicting  punishment  upon  a 

(i)  Grot,  de  Jure  B.  et  P.  1.  ii.  26. 

(/)  It  is  to  the  English  civilian  Zouch  that  we  owe  the  introduction  of  this 
correct  phrase,  the  forerunner  of  the  terms  International  Law,  now  in  general 
use. — See  Von  Ompteda,  Litteratur  der  Volkerrecht,  s.  64. 

D'Aguesseau  afterwards  adopted  the  phrase  jus  inter  gentes. — Tom.  i.  444,  521 ; 
Instit.  au  Droit  Public,  vii.  2  partie,  1. 

(k)  Hooker,  ib.,  b.  1,  s.  10. 

"  Dicitur  ergo  humana  lex  quia  proximd  ab  hominibus  inventa  et  posita  est. 
Dico  autem  proxime  quia  primordialiter  omnis  lex  humana  derivatur  aliquo  modo 
&  lege  eterna." — Suarez,  Tractatus  de  Legibus  et  Deo  legislatore,  c.  3,  p.  12  (ed. 
Lond.  1679.) 

"  Omnes  populi  qui  legibus  et  moribus  reguntur,  partim  suo  proprio,  partim 
communi  omnium  hominum  jure  utuntur;  nam  quod  quisque  populus  ipse  sibi 
jus  constituit,  id  ipsius  proprium  civitatis  est :  vocaturque  jus  civile,  quasi  jus 
proprium  ipsius  civitatis.  Quod  ver6  naturalis  ratio  inter  omnes  homines  con- 
stituit, id  apud  omnes  peraeque  custoditur;  vocaturque  jus  gentium,  quasi  quo 
jure  omnes  gentes  utuntur." — Dig.  lib.  i.  tit.  i.  s.  9. 

(/)  "  Dieselbe  Kraft  welche  das  Recht  hervortreibt,  bildet  auch  den  Staat,  ohne 
welchen  das  Recht  nur  ein  unvollstandiges  Daseyn,  eine  prekare  Existenz  hatte, 
ohne  den  der  gemeine  Wille,  auf  dem  das  Recht  beruht,  mehr  ein  Wunsch,  als  ein 
wirklicher,  kriiftiger  Wille  seyn  wiirde." — Puchta,  Instit.  xi.  27. 

"  Dennoch  ist  seine  erste  und  unabweisliche  Aufgabe  die  Idee  des  Rechts  in  der 
sichtbaren  Welt  herrschend  zu  machen." — Savigny,  R.  R.  b.  1,  k.  ii.  s.  9,  25. 

(m)  Cic.  pro  Cluentio,  53.  "Der  Staat  ist  die  Anstalt  zur  Beherrschung  des 
Rechtes  in  einem  bestimmten  Volke,  das  hochste  Rechtsinstitut  dieser  Nation." — 
Kaltenborn,  Volkerrecht,  259. 

(ri)  Savigny,  R.  R.,  2,  94 — 96,  has  some  excellent  remarks  on  the  analogous  sub- 
ject of  the  capacities  and  liabilities  of  corporations  in  a  state. 

See  Pinheiro  Ferreira's  Commentaries  on  Vattel,  wherever  the  word  "punir" 
occurs. 


50  PHILLIMOEE    ON    INTERNATIONAL    LAW. 

State,  is  to  mistake  both  the  principles  of  criminal  jurisprudence  and  the 
nature  of  the  legal  personality  of  a  corporation.  Criminal  law  is  con- 
cerned with  a  natural  person ;  a  being  of  thought,  feeling,  and  will.  A 
legal  person  is  not,  strictly  speaking,  a  being  of  these  attributes,  though, 
through  the  medium  of  representation  and  of  government,  the  will  of 
certain  individuals  is  considered  as  the  will  of  the  corporation ;  but  only 
for  certain  purposes.  There  must  be  individual  will  to  found  the  jur- 
isdiction of  criminal  law.  Will  by  representation  cannot  found  that 
jurisdiction.  Nor  is  this  proposition  inconsistent  with  that  which  ascribes 
to  States  a  capacity  of  civil  rights,  and  a  liability  to  civil  obligations. 
This  capacity  and  liability  require  for  their  subject  only  a.-ioill  compe- 
tent to  acquire  and  possess  property,  and  the  rights  belonging  to  it.  A 
legal  as  well  as  a  natural  person  has  this  will.  The  greatest  corporation 
of  all,  the  State,  has  this  will  in  a  still  greater  degree  than  the  minor 
subordinate  corporations — the  creatures  of  its  own  municipal  law.  The 
attribute  of  this  limited  will  is  consistent  with  the  idea  and  object  of  a 
legal  person.  But  the  attribute  of  the  unlimited  will,  requisite  for  the 
commission  of  a  crime,  is  wholly  inconsistent  with  this  idea  and  object. 
r*fin  ^ie  mistake  respecting  the  liability  of  nations  to  *punishinent, 
L  -I  which  appears  in  Grotius  and  Vattel,  arises  from  two  causes  :  First, 
from  an  indistinct  and  inaccurate  conception  of  the  true  character  of  a 
State;  secondly,  from  confounding  the  individual  rulers  or  ministers  with 
that  of  the  nation  which  they  govern  or  represent.  The  error  may  be 
fairly  illustrated  by  an  analogy  drawn  from  municipal  law.  Lunatics 
and  minors,  like  corporations,  have  no  natural  capacity  of  acting;  an 
artificial  capacity  is  therefore  vested  in  their  representatives,  their  guar- 
dians or  curators.  The  lunatics  and  minors  are  rendered,  by  the  acts  of 
these  representatives,  capable  of  civil  rights,  and  liable  to  civil  obliga- 
tions; but  the  possibility  of  their  being  rendered  liable  to  punishment 
for  the  vicarious  commission  of  crime,  is  a  proposition  as  yet  unknown 
to  any  human  code  of  municipal  law.  Justice  and  law  lay  down  the 
rule  :  "  Ut  noxa  tan  turn  caput  sequatur."(o)  It  does  not  militate  with 
this  doctrine,  to  maintain  that  a  State  may  be  injured  and  insulted  by 
another ;  may  seek  redress  by  war,  or  may  require  the  deposition  of  the 
ruler,  or  the  exile  of  the  representative  of  another  State ;  or  may  deprive 
a  State  of  its  territory,  wholly  or  in  part.  These  measures  may  be 
necessary  to  preserve  its  own  personality  and  existence,  the  welfare  of 
other  States,  and  the  peace  of  the  world,  and  on  these  grounds,  but  upon 
no  other,  they  may  be  defensible.  These  acts,  when  lawful,  are  acts, 
directly  or  indirectly,  of  self-defence,  not  of  punishment.  It  has  hap- 
pened, that  corporations  have  been  subjected  to  calamities  which  at  first 
sight  resemble  punishments.^)  Municipalities  have  been  deprived  of 

(o)  It  is  hardly  necessary  to  say,  that  the  awful  question  of  God's  dealing  with 
sinful  nations  does  not  enter  into  this  discussion. 

"Nunquam  curias  a  provinciarum  rectoribus  general!  condemnatione  mnlctentur, 
cum  utique  hoc  et  tequilas  suadeat  et  regula  juris  antiqui,  ut  noxo  tantum  caput 
sequatur,  ne  propterunius  fortasse  delictum  alii  dispendiis  affligantur." — Nov.  Ma- 
joriani,  tit.  T  ;  Hugo  Jus  Civile  Antejust.  p.  1386,  s.  4 :  cited  Savigny,  R.  R.  2, 321. 

(p]  Savigny,  R.  R.  2,  318. 


INTRODUCTION.  51 

their  legal  personality,  or  have  been  stripped  of  their  *honours  and  r-#*-, 
privileges,  as  regiments  have  been  deprived  of  their  colours.  But  L  -» 
these  acts,  duly  considered,  are  acts  of  the  politician,  not  of  a  judge. (j) 

We  read  in  Roman  history  of  the  punishment  inflicted  upon  the  city 
of  Capua,  which  had  revolted  from  Rome,  and  become  the  ally  of  Han- 
nibal. Reconquered  Capua  was  stained  with  the  blood  of  her  eminent 
citizens,  and  disfranchised  of  all  her  corporate  privileges. (r)  But  this, 
and  other  less  remarkable  instances  of  the  like  kind  in  Roman  history, 
did  not  purport  to  be,  and  were  not  judicial  applications  of  criminal  law  ; 
but  were  rather  acts  of  state  policy,  intended  to  strike  a  salutary  terror 
equally  into  foes  and  subjects. (s) 

A  very  different  principle  appears  in  the  pages  of  Roman  jurispru- 
dence, in  which  the  obligation  arising  from  the  commission  of  a  crime — 
dbligatio  ex  delicto — is  distinguished  from  the  obligation  arising  from  the 
possession  of  a  benefit  obtained  by  the  commission  of  a  crime — obligatio 
ex  re,  ex  eo  quod  ad  aliquem  pervenit.(f\  The  latter,  but  not  the  for- 
mer obligation  may  bind  a  corporate  body. 

Under  what  circumstances  States  become  responsible  for  the  guilty 
acts  of  their  individual  members,(tt)  will  be  considered  *hcreafter.  r  R  _ 
But  even  in  these  cases  the  State  is  not  punishable,  though  liable  L  J 
to  make  compensation  for  the  injury  which  it  has  sanctioned. 

XII.  Vattel  describes  with  simplicity  and  truth  the  province  of  Inter- 

(q)  Livy,  lib.  xxvi.  c.  16:  De  supplicio  componi,"  &c. 

C.  17  :  "Quod  ad  supplicium,  ad  expetendas pcenasj"  &c. 

(r)  C.  17  :  "  Caeterum  habitari  tan  turn,  tanquam  urbem,  Capuam,  frequentarique 
placuit :  corpus  nullum  civitatis,  nee  senatus,  nee  plebis  concilium,  nee  magistratua 
esse  sine  consilio  publico,  sine  imperio,  multitudinem,  nullius  rei  inter  se  sociam, 
ad  consensum  inhabilem  fore." 

(*)  C.  17  :  "  Confessio  expressa  hosti  quanta  vis  in  Romanis  ad  expetendas  pcenas 
ab  infidelibus  sociis,  et  quam  nihil  in  Annibale  auxilii  ad  receptos  in  fidem  tuen- 
dos  esset." 

(t)  Dig.  xliii.  t.  xvi.  s.  4:  "De  vi. — Si  vi  me  dejecerit  quis  nomine  municipum 
in  municipes  mihi  interdictum  reddendum  Pomponius  ait,  si  quid,  ad  eos pervenit." 

(u)  "  Solere  pcence  expetendae  causa  bella  suscipi,  et  supra  ostendimus  et  passim 
decent  historic :  ac  plerumque  haec  causa  cum  altera  de  damno  reparando  con- 
juncta  est,  quando  idem  actus  et  vitiosus  fuit  et  damnum  reipsa  intulit,  ex  quibus 
duabus  qualitatibus  duae  dirersae  nascuntur  obligationes." — Grotius,  lib.  ii.  c.  20, 
s.  28. 

"  Sciendum  quoque  est,  reges,  et  qui  par  regibus  jus  obtinent,  jus  habere  p&nas 
poscendi  non  tantum  ob  injurias  in  se  aut  subditos  suos  commissas,  sed  et  ob  eas 
qvue  ipsos  peculiariter  non  tangunt,  sed  in  quibus  vis  personis  jus  naturae  aut  gen- 
tium immaniter  violant." — Ib.  lib.  ii.  c.  20,  s.  40. 

"  Et  eatenus  sententiam  sequimur  Innocentii,  et  aliorum  qui  bello  agunt  peti 
posse  eos  qui  in  naturam  delinquunt:  contra  quam  sentiunt  Victoria,  Vasquiua, 
Azorius,  Molina,  alii,  qui  ad  justitiam  belli  requirere  videntur,  ut  qui  suscipit  aut 
Isesus  sit,  in  se  aut  republica  sua,  aut  ut  in  eum  qui  bello  impetitur  jurisdictionem 
habeat.  Ponunt  enim  \\lipuniendi  potestatem  esse  effectum  proprinm  jurisdictio- 
nis  civilis,  cum  nos  earn  sentiamus  venire  etiam  ac  jure  natural!,  qua  de  re  aliquid 
diximus  libri  primi  initio.  Et  sane  si  illorum  a  quibus  dissentimus  admittatur  sen- 
tentia,  jam  hostis  in  hostem.  puniendi  jus  non  habebit,  etiam  post  just6  susceptum 
bellum  ex  causa  non  punitiva :  quod  tamen  jus  plerique  concedunt,  et  usus,  omnium 
gentium  confirmat,  non  tantum  postquam  debellatum  est,  sed  et  manente  bello  ;  non 
ex  ulla  jurisdictione  civili,  sed  ex  illo  jure  natural!  quod  et  ante  institutas  civitatea 
fuit,  et  nunc  etiam  viget,  quibus  in  locis  homines,  vivunt  in  familias  non  in  civi- 
tates  distributi."— Ib.  lib.  ii.  c.  20,  s.  40  (4). 

C.  21:  "De  communicatione pcenarum" 


52  PHILLIMORE    ON     INTERNATIONAL    LAW. 

national  Jurisprudence :  "  Le  droit  des  Gens"  (he  says)  "  est  la  science 
du  droit  qui  a  lieu  entre  les  Nations  et  les  Etats,  et  des  obligations  qui 
repondent  a  ce  droit." (a) 

The  same  favourite  expounder  of  International  Law  does  not  hesitate 
to  class  among  these  obligations  binding  upon  the  national  conscience, 
the  duty  of  succouring  another  nation  unjustly  invaded  and  oppressed. 
The  fact  that  no  defensive  alliance  formally  subsists  between  the  two 
nations  cannot,  he  says,  be  alleged  as  an  excuse  for  the  neglect  of  this 
duty.  The  nation  that  renders  the  succour,  is  keeping  alive  that  bene- 
volent spirit  of  mutual  assistance,  the  application  of  which  she  herself 
may  one  day  need.  To  perform  her  duty  to  another  is,  in  truth,  to 
strengthen  the  foundations  of  her  own  security ;  and  in  the  case  of  the 
r  -ICQ  I  nation,  *as  in  the  case  of  the  individual,  duty  and  true  self-love 
L  -I  point  to  the  same  path.(y) 

The  whole  edifice  of  this  science,  pronounced  by  the  still  higher  autho- 
rity of  G-rotius  to  be  the  noblest  department  of  jurisprudence,^)  may  be 
said  to  rest  upon  the  sure  foundations — first,  of  moral  truth ;  and,  se- 
condly, of  historical  fact : — 

1.  The  former  demonstrates  that  independent  communities  are  free 
moral  agents. 

2.  The  latter,  that  they  are  mutually  recognized  as  such  in  the  uni- 
versal community  of  which  they  are  individual  members,  (a) 


[*10]  *CHAPTER    IT. 

PLAN  OF  THE  WORK. 

XIII.  A  TREATISE  on  International  Jurisprudence  appears  to  admit 
of  the  following  general  arrangement : — 

(x)  Prelim,  s.  3. 

(y)  "  Ainsi  quand  un  Etat  voisin  est  injustement  attaque"  par  un  ennemi  puissant, 
qui  menace  de  1'opprimer,  si  vous  pouvez  le  deTendre  sans  rous  exposer  a  un  grand 
danger,  il  n'est  pas  douteux  que  vous  ne  deviez  le  faire.  N'objectez  point  qu'il 
n'est  pas  permis  a  un  souverain  d'exposer  la  vi  de  ses  soldats  pour  le  salut  d'un 
Stranger,  avec  qu'il  n'aura  contract^  aucune  alliance  defensive.  II  peut  lui-meme 
se  trouver  dans  le  cas  d' avoir  besoin  de  secours ;  et  par  consequent  mettre  en  vi- 
gueur  cet  esprit  d'assistance  mutuelle,  c'est  travailler  au  salut  de  sa  propre  Na- 
tion."— Liv.  ii.  c.  i.  s.  4. 

(z)  Grotius,  Proleg.  32:  "In  hoc  opere  quod  partem  jurisprudentiee  longe  nobi- 
lissimam  continet." 

Aristoteles,  Eth.  lib.  i.  C.  2  :  "  'Ay<wijr<5i/  piv  KOI  Ivl  p5vu>  ica\\iov  Se  icai  Bctdrcpov  cOvci 
Kal  Tr6\Cffiv." 

(a)  Domat,  Traite"  des  Lois,  c.  xi.  a.  30. 

Kaltenborn,  Kritik  des  Volkerrechts,  s.  295. 

"  Possunt  autem  gentium  praecepta  ad  unum  principium  revocari,  quo  quasi  fun- 
damento  suo  nituntur.  Oportet  enim  esse  gentes  vel  respublicas,  quse  se  invicem 
ut  liberas  et  sui  juris  nationes  agnoscunt.  Hac  agnitione  sine  qua  jus  gentium  ne 
cogitari  quidem  potest  efficitur,  ut  illae  civitates  personarum  ad  instar  habeantur, 
quae  non  minus  quam  singuli  homines  caput  habentes  suo  jure  utuntur,  et  mutuo 
juris  vinculo  inter  se  junguntur.  Hujus  vinculi  definitio  atque  ponderatio  juris  gen- 
tium argumentum  est." — Doctrina  Juris  Philosophica,  &c.,  Warnkoenig,  s.  145,  p. 
189. 


PLAN    OF    THE    WORK.  53 

1.  An  inquiry  into  the  origin  and  nature  of  the  Laws  which  govern 
international  relations  (leges.} 

2.  The  Subjects  of  these  laws.     The  original  and  immediate  subjects 
are  States  considered  in  their  corporate  character. 

3.  The  Objects  of  these  laws.     These  objects  are  Things,  Rights,  and 
the  Obligations  which  correspond  to  them  (Res,  Jura,  Obligationes.) 

4.  Certain  Subjects  of  these  laws  which,  though  only  to  be  accounted 
as  such  mediately  and  derivatively,  yet,  for  the  sake  of  convenience,  re- 
quire a  separate  consideration. 

These  Subjects  of  International  Law  are  the  following  individuals  who 
are  said  to  represent  a  state  : — 

1.  Sovereigns. 

2.  Ambassadors. 

Also  another  class  of  public  officers  who  are  not  clothed,  accurately 
speaking,  with  a  representative  character,  but  who  are  entitled  to  a  quasi 
diplomatic  position,  namely — 

3.  Consuls. 

4.  Lastly,  the  International  /Status  of  Foreign  Spiritual  Powers, 
especially  of  the  Pope,  requires  a  distinct  consideration. 

XIV.  Public  International  Rights,  like  the  Private  Rights  of  an  In- 
dividual, are  capable  of  being  protected  and  enforced  by  Legal  Means. 

*These  Legal  Means  are  of  two  kinds,  aptly  expressed  by  jur-  r#ii  -i 
ists  as  being  (1)  via  amicabili,  and  (2)  viafacti. 

i    T7-*       •    v-u  (      1-  Negotiation. 

1.  via  amicabm.          •{      n     .    °.,    ,. 

(      2.  Arbitration. 

(      1.  Reprisals. 

2.  Via  facti.  \      2.  Embargo. 

(     3.  War. 

When  war  has  actually  begun,  we  enter  upon  the  jus  belli,  which  is  to 
be  considered  with  reference  to 

1.  The  Rights  of  Belligerents ; 

2.  The  Rights  of  Neutrals— 

"  Sequitur  enim  de  jure  belli :  in  quo  et  suscipiendo,  et  gerendo,  et  de- 
ponendo,  jus,  ut  plurimum  valet,  et  fides. (a)  For  the  wars  (as  Lord 
Bacon  says)  are  no  massacres  and  confusions,  but  they  are  the  highest 
trials  of  right."  (6) 

Grotius  points  out,  with  his  usual  sound  and  true  philosophy,  the  pro- 
per place,  object,  and  functions  of  war  in  the  system  of  International 
Law  :(c)  "  Tantum  vero  abest  ut  admittendum  sit,  quod  quidam  fingunt, 
in  bello  omnia  jura  cessare,  ut  nee  suscipi  bellum  debeat  nisi  ad  juris 
consecutionem,  nee  susceptum  geri  nisi  intra  juris  et  fidei  modum.  Bene 
Demosthenes  bellum  esse  in  eos  dixit,  qui  judiciis  coerceri  nequeunt; 
judicia  enim  vigent  adversus  eos  qui  invalidiores  se  sentiunt :  in  eos  qui 

(a)  Cicero  de  Rep.  lib.  ii.  c.  14;  and  he  adds,  "  horumque  ut  publici  interpretes 
essent  lege  sanximus." 

(b)  Bacon's  Works,  vol.  v.  p.  384  (ed.  Basil  Montagu.) 

(c)  Grotii  Proleg.  25,  De  Jure  Belli  et  Pacis  ;   though  he  illogicially  misplaces 
the  treatment  of  it  in  his  great  work,  beginning,  as  indeed  he  admits,  with  the  end 
of  his  subject. 


54  PHILLIMORE    ON    INTERNATIONAL    LAW. 

pares  se  faciunt  autputant,  bella  sumuntur  ;  sed  nimirum  ut  recta  sint, 
non  minori  religione  exercenda  quam  judicia  exerceri  sclent ;"  and  again, 
«  helium  pads  causa  suscipitur."(d\ 

r#-if)  -I       XV.  When  by  use  of  the  Legal  Means  of  War  the  *Right  has 
-I  been  obtained  or  secured,  or  the  Inquiry  redressed — -post  juris 
consecutionem — the  normal  state  of  peace  is  re-established. 

A  consideration  of  the  negotiations  which  precede,  and  the  conse- 
quences which  follow,  the  Ratification  of  Peace  will  conclude  that  por- 
tion of  this  work  which  relates  to  Public  International  Law. 

XVI.  We  have  hitherto  spoken  of  Public  International  Law  (jus  pub- 
licum  inter  gentes— jus  pads,}  which  governs  the  mutual  relations  of 
States  with  respect  to  their  Public  Eights  and  Duties;  but,  as  States  are 
composed  of  Individuals,  and  as  individuals  are  impelled  by  nature  and 
allowed  by  usage  to  visit  and  to  dwell  in  states  in  which  they  were  not 
born,  and  to  which  they  do  not  owe  a  natural  allegiance,  and  as  they 
must  and  do  enter  inter  transactions  and  contract  obligations,  civil, 
moral,  and  religious,  with  the  inhabitants  of  other  states,  and  as  States 
must  take  some  cognizance  of  these  transactions  and  obligations,  and  as 
the  municipal  law  of  the  country  cannot,  in  many  instances  at  least,  be 
applied  with  justice  to  the  relations  subsisting  between  the  native  and 
the  foreigner — from  these  causes  a  system  of  Private  International  Law, 
a  "jus  gentium  privatum"  has  sprung  up,  which  has  taken  deep  root 
among  Christian,  though  it  more  or  less  exists  among  all,  nations. 

The  distinction,  however,  between  the  two  branches  of  International 
Jurisprudence  is  exremely  important.  It  is  this  : — 

The  obligationes  juris  privati  inter  gentes  are  not — as  the  obligations 
juris  publici  inter  gentes  are — the  result  of  legal  necessity,  but  of  social 
convenience,  and  they  are  called  by  the  name  of  Comity — comitas  gen- 
itum. 

It  is  within  the  absolute  competence  of  a  State  to  refuse  permission 
to  foreigners  to  enter  into  transactions  with  its  subjects,  or  to  allow  them 
r  *1  q  1  *°  ^°  so>  being  forewarned  that  the  ^municipal  law  of  the  land 
-•  will  be  applied  to  them  ;(e)  therefore  a  breach  of  comity  cannot, 
strictly  speaking,  furnish  casus  belli,  or  justify  a  recourse  to  war,  any 
more  than  a  discourtesy  or  breach  of  a  natural  duty,  simply  as  such,  can 
furnish  ground  for  the  private  action  of  one  individual  against  another. (/) 

For  a  want  of  Comity  towards  the  individual  subjects  of  a  foreign 
State,  reciprocity  of  treatment  by  the  State  whose  subject  has  been  in- 
jured, is,  after  remonstrance  has  been  exhausted,  the  only  legitimate 
remedy ;  whereas  the  breach  of  a  rule  of  Public  International  Law  con- 
stitutes a  casus  belli,  and  justifies  in  the  last  resort  a  recourse  to  war. 

(d)  Ib.  lib.  i.  c.  i.  s.  1. 

"  Le  mal  que  nous  faisons  a  1'agresseur  n'est  point  notre  but :  nous  agissons  en 
vue  de  notre  salut,  nous  usons  de  notre  droit;  et  1'agresseur  est  seul  coupable  du 
mal  qu'il  s'attire." — Vattel,  liv.  ii.  c.  ii.  s.  18. 

Taylor's  Civil  Law,  p.  131. 

(e)  Neyron,  Principes  du  Droit  des  Gens  Europeans,  1.  clxsi.  c.  vi.  s.  I1? 7. 
Barbeyrac,  Ad  Grotium,  1.  ii.  c.  ii.  s.  13. 

(/)  Vattel,  liv.  ii.  c.  i.  s.  10. 


SOURCES     OF    INTERNATIONAL    LAW.  55 

It  is  proposed  to  treat  the  subject  of  Comity  or  Private  International 
Law  next  in  order  to  the  subject  of  Public  International  Law. 


'CHAPTER   III.  [*14] 

SOURCES   OP   INTERNATIONAL  LAW. 

XVII.  IT  is  proposed  in  this  chapter  to  trace  the  source  and  ascertain 
the  character  of  those  laws  which  govern  the   mutual  relations  of  inde- 
pendent States  in  their"  intercourse  with  each  other. 

XVIII.  International  Law  has  been  said,  by  one  profoundly  conver- 
sant with  this  branch  of  jurisprudence,  to  be  made  up  of  a  good  deal  of 
complex  reasoning,  and  though  derived   from  very  simple  principles, 
altogether  to  comprise  a  very  artificial  system. (a) 

XIX.  What  are  the  depositories  of  this  reasoning  and  these  principles  ? 
What  are  the  authorities  to  which  reference  must  be  made  for  the  ad- 
justment of  disputes  arising  upon  their  construction,  or  their  application 
to  particular  instances?     What  are  in  fact  the  fountains  of  International 
Jurisprudence — "dijudicationum  fontes?" — to  borrow  the  just  expres- 
sion of  Grotius.     These  are  questions  which  meet  us  on  the  threshold 
of  this  science,  and  which  require  as  precise  and  definite  an  answer  as 
the  peculiar  nature  of  the  subject  will  permit. (Z>) 

XX.  Grotius  enumerates  these  sources  as  being  "ipsa  natura,  leges 
divince,  mores,  et  pacta."(c\ 

In  1753,  the  British  Government  made  an  answer  to  a  memorial  of 
the  Prussian  government(^)  which  was  termed  *by  Montesquieu  r^-ic-i 
reponse  sans  repligue,(e)  and  which  has  been  generally  recognised  L  J 
as  one  of  the  ablest  expositions  of  international  law  ever  embodied  in  a 
State  paper.  In  this  memorable  document,  "The  Law  of  Nations"  is 
said  to  be  "founded  upon  justice,  equity,  convenience,  and  the  reason  of 
the  thing,  and  confirmed  by  long  usage." 

XXI.  These  two  statements  may  be  said  to  embrace  the  substance  of 
all  that  can  be  said  on  this  subject.     An  attempt  must  now  be  made  to 
examine  in  detail,  though  not  precisely  in  the  same  order,  each  of  the 
individual  sources  set  forth  in  the  foregoing  citations. 

XXII.  Moral  persons  are  governed  partly  by  Divine  law  (leges  divince,} 
which  includes  natural  law — partly,  by  positive  instituted  human  law, 
which  includes  written  and  unwritten  law  or  custom  (Jus  scriptum,  non 
scriptum  consuetudo.} 

(a)  Lord  Stowell :  the  Hurtige  Hane,  3  Eobinson,  Adm.  R.  326. 

(6)  Arist.  Eth.  lib.  i.  C.  2  :  "  Tlciraifavfievov  yap  torn/,  iiri  ToaovTOV  rd<rpi/?£j  £7ri£ijrti> 
KaB  broom*  yevoj  ify  5<rov  fi  rov  irpdy^aroj  <j>varis  tVtJsxtrai,  irapairAiJcrioi'  yap  Qaivtraij  p.a.9- 
TijiariKov  re  iriOavoAoyoujTOf  diro&ixf^aij  *<*'  pnropiicdv  diroieij-sis  (hrctrctV." 

(c)  Prolegom.  :  "  By  the  Law  of  Nature  and  Nations  and  by  the  Law  Divine, 
which  is  the  perfection  of  the  other  two." — Lord  Bacon,  Of  an  Holy  War. 

(d)  Cabinet  of  Scarce  and  Celebrated  Tracts,  1  vol.  (Edinburgh). 

(e)  Lettres  Persannes,  liv.  xlv. 


56  PHILLIMORE    ON    INTERNATIONAL    LAW. 

States,  it  has  been  said,  are  reciprocally  recognized  as  moral  persons. 
States  are  therefore  governed,  in  their  mutual  relations,  partly  by  Divine, 
and  partly  by  positive  law.  Divine  Law  is  either  (1)  that  which  is  writ- 
ten by  the  finger  of  G-od  on  the  heart  of  man,  when  it  is  called  Natural 
Law ;  or  (2)  that  which  has  been  miraculously  made  known  to  him,  when 
it  is  called  revealed,  or,  Christian  law.(/) 

XXIII.  The  Primary  Source,  then,  of  International  Jurisprudence  is 
Divine  Law.     Of  the  two  branches  of  Divine  Law  which  have  been 
mentioned,  natural  law,  called  by  jurists  jus  primarium,  is  to  be  first 
considered.     "  In  jure  gentium/'(#)  Grotius  says,  "jus  naturse  includi- 
tur;"  and,  again,  "  jure  primo  gentium  quod  et  naturale  dicitur." 

All  civilized  heathen  nations  have  recognized  this  law  as  binding  upon 
themselves  in  their  internal  relations.  They  called  it  the  unwritten,  the 
innate  law — the  law  of  which  *mortals  had  a  Divine  intuition(7i) 
— the  law  which  was  begotten  and  had  its  footsteps  in  heaven, 
which  could  not  be  altered  by  human  will,(i)  which  secured  the  sanctity 
of  all  obligations — the  law  which  natural  reason  has  rendered  binding 
upon  all  mankind. (/<;) 

XXIV.  It  has  been  often  said  that  the  civilized  heathen  nations  of 
old,  that  the  Greeks  and  Romans  recognized  no  such  law  in  their  exter- 
nal relations ;  that  is,  in  their  intercourse  with  themselves  or  with  other 
nations.      But  this  conclusion  is  founded  on  slender  and  insufficient  pre- 
mises, chiefly  upon  the  absence  of  distinct  treatises  on  the  subject,  on 
the  want  of  a  distinct  phrase  expressing  the  modern  term  international 
law — on  the  etymological  meaning  of  words — on  the  use  of  "  jus  gen- 
tium "  in  the  repositories  of  Roman  law,  as  an  expression  identical  with 
jus  naturae — and  on  the  practical  contempt  for  the  law,  exhibited  in  the 
unbounded  ambition  and  unjustifiable  conquests  of  ancient  Rome. 

XXV.  Nevertheless,  we  know  that  Aristotle(Z)  wrote  a  treatise  on  the 
justifying  causes  of  war;  and  we  read,  in  one  of  his  works,  a  severe  cen- 
sure upon  those  nations  who  would  confine  the  cultivation  of  justice 
within  the  limits  of  their  own  territories,  and  neglect  the  exercise  of  it 
in  their  intercourse  with  other  nations,  (m)     Thucydides(w)  prefers  the 
r  *1 7  1  same  charge  against  the  Lacedaemonians,  which  is  repeated  *by 

-I  Plutarch  ;(o)  and  we  find  Plato  demanding,^))  with  indignation, 

(/)  Arist.  Eth.  lib.  v.  c.  7.     St.  Paul's  Ep.  to  the  Romans,  ii.  14,  15. 
(g)  Mare  Liberum,  lib.  v. ;  Merlin  Rep.  de  Jurispr.  torn.  v.  p.  291. 

(A)   Arist.    Rhct.,  b.  i.  C.  13  :   "  "iSiov  fiiv  TOV  ixaaTOis  itipt^jiivov  irpds  avrovf'  Kal   TOVTOV 
rdv  uiv  HypaipoVj  rdv  6i  ysypaftjicvov.      "Kaivov  <5e   r5v  Kara.  <f>vtnv   eori   yap,  8  [navTevovTai  rt 
irdvTCSj  fyvaei  Koivdv   bixaiov  Kal  aliKOv,  Kav  piideuia    KOivwvia  trpds  dXX>}Aou£  rj}  firi&s.  (rvvBrjicri." 
i)  Soph.  Antig.  v.  450-7;  "'Ifynv&r  i/fyoc."— (Ed.  Tyr.  836. 
k)  Cic.  Pro  Milone,  3 ;  De  Rep.  1.  iii.  c.  22. 
^ixaMjiara  rtav  no\i/tt>)v. 

"  'A.VTOI   filv  yap   nap  aurotj  rd  SiKatw;  apxciv  ^provtrt  vpdf  SI   rotij  aXX«uj    ovSev  fiiXet 
Kaiuv." — Polit.  lib.  vii.  c.  2.     And  when  he  is  discussing  the  different  ends  of 
different  kinds  of  oratory,  and  observing  that  the  speaker  in  the  public  assembly 
dwells  on  the  inexpediency  and  not  the  immorality  of  a  particular  course  of  action : 
"cbj  S'  OVK  aSixov  rorij  doTvyeirovas  /caracJouXouo-lJai,    Kal  rovj  fiy&iv   dSiKOvvrafj  TroXXu/aj  dviiv 
QpovTifrvinv." — Rhet.  torn.  i.  c.  3. 
(n}  Thucyd.  lib.  v. 
(o)  Plutarch  :  Vita  Agesilai. 
(j»)  "  Il6\iv  tyairis  av  aSiicov  elvai  Kal  aXXaj  iro\iis  i-ni'X.cipEiv  Sov\owOai   dfiKOis  xal  Kara- 


SOURCES    OF    INTERNATIONAL    LAW.  57 

whether  it  was  reasonable  to  suppose  that  any  society  could  flourish 
which  did  not  respect  the  rights  of  other  societies.  We  find  Euripides 
speaking  of  the  natural  equality  of  rights  as  binding  city  to  city,  and 
ally  to  ally.  (j)  We  find  Themistocles  claiming  the  'right,  "communi 
jure  gentium,"  of  placing  Athens  in  a  state  of  defence.(r)  "We  find  that 
the  rights  of  embassy  were  respected  —  that  treaties  were  ratified  by 
solemn  sacrifices,(s)  and  placed  under  the  especial  care  of  the  deities  who 
avenged  violated  faith.  We  read  of  the  memorable  Amphictyonic 
league,  which  constituted  the  tribunal  of  public  international  law  for 
Greece.  These  and  other  historical  facts  demonstrate  that  the  applica- 
tion of  the  principles  of  natural  justice  to  international  relations,  how- 
ever imperfectly  executed,  and  though  never,  perhaps,  reduced  to  a  sys- 
tem, was  not  unknown  to  Greece.  (*) 

XXVIII.  We  are  led  with  yet  more  certainty  to  this  conclusion  with 
respect  to  Rome,  by  the  consideration  of  two  remarkable  institutions 
which  existed  there  :  —  1.  The  Collegium  Fecialium,  with  the  Jus  Fe« 
ciale,(w)  which  could  not  *be  better  translated  than  by  the  words  r  *io  -i 
"  Public  International  Law."  2.  The  institution  of  the  Recupe-  L 
ratores,  with  the  doctrine  of  the  Recuperatio,  the  precursor  of  that  sys- 
tem which  is  now  called  "  Private  International  Law."  Traces  of  the 
same  fact  are  abundantly  scattered  over  the  pages  of  Latin  authors,  legal, 
historical,  and  philosophical.  The  phrase  "jus  gentium,"  in  classical 
writers,  and  in  the  Justinian  compilations  of  law,  is  indeed  generally 
(though  not  without  exceptions)  used  as  synonymous  with  natural 
law;(x)  for  there  are  passages  in  these  compilations,  as  well  as  in  the 
pages  of  Sallust  and  Livy,  in  which  the  phrase,  strictly  speaking,  denotes 
international  law.  The  fact,  moreover,  that  the  expression  "jus  gen- 
tium" was  used  as  synonymous  with  what  is  now  called  "jus  naturale" 
is  by  no  means  inconsistent  with  the  position,  that  the  principles  of 
natural  law  were,  theoretically  at  least,  recognised  by  Rome  in  her  ex- 
ternal as  well  as  her  internal  relations. 


roXXaj  <5c  KOI  v(f>'  lavrrj  exftv  Sov\waa)ie,vr}v  ;  TT&S,  yap  OVK  /  i(j>rj  ..... 
'aXXa  (5()  Kal  r66e  fioi  xdpurat  Kai  \iye  '  £OKCI;  av  ft  Tr6\tv,  r)  crpardveSovj  >>  X?;<rray,  5)  (rXeTrray, 
5?  aXXo  ri  ZOvo;,  Sao.  KOivfj  erri  TI  Ipxtrai  <i<5iArcdj,  irpa  f  ai  av  ri  cvva&dat  it  d&iKOitv  dXXijXoi'j  ; 
ov  6rjra  r\  6'  8;  '  ri  6'  ti  fir]  aSiKOisv  ;  ov/iaXXoi/  Tliivv  ye,"  *.  T.\.  —  De  Rep.  lib.  i.  pp.  77, 

78,  ed.  1829.     Gothae  et  Erfordiae. 

(y)  "  KsTvo  /taXXiov,  rixvovj 

tVdnjra  rifiav,  Ji  (j>i\ovs  atl  <j>i\oig 
irA\£is  T£  Trd\eai  <n>/i//axoi)j  rt  <rv^//aXO(j 
j-vvisl,  Td  yap  t<rov  vontfiov  dvOp'Jnroif  etyv.' 

$>oivur<rai,  535. 

!r)  Cornelius  Nepos,  Vita  Themistoc.  («)  Livy,  1.  xxiv. 

t)  See  Appendix  for  a  fuller  dissertation  upon  this  subject. 
w)  Zoucb's  Treatise  on  International  Law  is  entitled,  "  De  Jure  Feciali,  sive  de 
Jure  inter  Gentes." 

(x)  Puchta,  Instit.  362.     See  Appendix. 

(y)  Taylor,  p.  128.  "The  law  was  natural  law  before:  the  existence  of  this 
situation  only  gives  it  use  and  application.  Suppose  the  observance  of  faith  to 
be  a  rule  of  nature:  when,  to  speak  in  the  language  of  the  Schools,  it  is  Jus 
Naturce  ab  origine  et  causa  proxima,  it  is  Jus  Gentium  a  subyecto."  And  again  : 
"  Contracts  were  introduced  by  the  law  of  nations  ;  no  new  law  is  formed,  but  an 
eternal  and  necessary  law  has  now  a  scene  to  exert  its  operations  in." 

JULY,  1854.—  5 


58  PHILLIMORE      ON     INTERNATIONAL     LAW. 

A  cursory  reference  to  the  works  of  Cicero  alone  will  show  that  in  his 
time,  and  before  the  destruction  of  the  Republic,  the  science  of  Inter- 
national Law  was  beginning  to  receive  great  cultivation  in  all  its 
branches ;  nor  can  the  necessity  and  duty  of  international  obligations  be 
more  forcibly  inculcated  than  in  these  words :  "  Qui  civiurn  rationed 
habendam  dicunt,  exterorum  negant,  hi  communionem  et  societatem  hu- 
mani  generis  dirimunt." 

Cicero  praises  Pompey  for  being  well  versed,  not  only  in  what  is  now 
called  Conventional  or  Diplomatic  Law,  but  also  in  the  whole  jurispru- 
dence relating  to  Peace  and  War. 

Cicero  maintains,  that  God  has  given  to  all  men  conscience  and  intel- 
r  *1Q  1  IGC*  ')  tna*  wnere  these  exist,  a  law  exists,  of  which  *all  men  are 
-I  common  subjects.  Where  there  is  a  common  law,  he  argues, 
there  is  a  common  right,  binding  more  closely  and  visibly  upon  the 
members  of  each  separate  State,  but  so  knitting  together  the  Universe, 
"  ut  jam  universus  hie  mundus  una  civitas  sit,  communis  Deorum  atque 
hominum  existimanda."(«) 

That  law,  this  great  Jurist  says,  is  immortal  and  unalterable  by  prince 
or  people,  and  in  glowing  language  he  anticipates  the  time  when  one 
law  and  one  God  will  govern  the  world:  "Neque  erit  alia  lex  Romse, 
alia  Athenis,  alia  nunc,  alia  posthac  ;  sed  et  omnes  gentes  et  omni  tern- 
pore  una  lex  et  sempiterno  et  immutabilis  continebit,  unusque  erit  com- 
munis quasi  magister  et  imperator  omnium  Deus."(a) 

XXIX.  The  subject  which  has  been  just  discussed  is  not  one  of  mere 
literary  curiosity  or  philosophical  research.     It  has  indirectly  a  practical 
r  *9A  ~\  Bearing  on  the  theme  of  this  *treatise.     The  same  school  which 

-I  denies  that  the  polished  nations  of  antiquity  recognised  interna- 
tional obligations,  uses  the  assumed  fact  as  an  illustration  of  a  further 
and  more  general  position,  namely — a  denial  that  any  general  Interna- 
tional Law,  not  the  result  of  positive  compact,  exists  between  Christian 
nations  and  those  which  are  not  Christian. 

XXX.  This  position,  it  will  be  seen,  directly  conflicts  with  the  prin- 

(z)  De  Rep.  Seneca,  the  contemporary  of  St.  Paul,  breathes  in  his  Epistles  the 
the  very  spirit  of  Christian  brotherhood  and  unity :  "  Philosophia  docuit  colere 
divina  humana  diligere,  et  penes  Deos  imperium  esse  inter  homines  consortium."  (Ep. 
95.)  "  Homo,  sacra  res  homini — omne  hoc  quod  vides,  quo  divina  atque  humana 
conclusa  sunt,  unum  est :  membra  sumus  corporis  magni,  natura  nos  cognates  edidit, 
quum  ex  iisdem  et  in  eadem  gigneret.  Hsec  nobis  amorem  dedit  mutuum  et  sociabiles 
fecit."  (Ep.  90.) 

Troplong :  De  1'Influence  du  Christianisme  sur  le  Droit  Civil  des  Remains. — 
P.  70,  &c. 

"  Homo  sum  :  humani  nihil  a  me  alienum  puto,"  is  the  language  which  Terence 
puts  into  the  mouth  of  one  of  his  characters. — Heautontimor  :  act  i.  sc.  i.  25. 

(a)  De  Rep.  lib.  iii.  c.  xxii.  See  also  De  Legibus  (lib.  i.  c.  vii.),  and  a  noble 
passage  (lib.  i.  c.  xxiii.),  where  he  bids  his  hearer  elevate  his  mind  to  the  pros- 
pect of  the  universe,  its  rules,  and  its  laws:  "Seseque  non  unius  circuindaturn 
mcenibus  loci,  sed  civem  totius  mundi  quasi  unius  urbis  agnoverit." 

"  Of  Law  there  can  be  no  less  acknowledged  than  that  her  seat  is  the  bosom  of 
God,  her  voice  the  harmony  of  the  world  ;  all  things  in  heaven  and  earth  do  her 
homage — the  very  least  as  feeling  her  care,  and  the  greatest  as  not  exempted 
from  her  power;  both  angels  and  men,  and  creatures  of  what  condition  soever, 
though  each  in  different  sort  and  manner,  yet  all  with  uniform  consent,  admiring 
her  as  the  mother  of  their  peace  and  joy." — Hooker,  ib.  b.  i. 


SOURCES     OF    INTERNATIONAL     LAW.  59 

ciple  just  enunciated;  and,  on  the  contrary,  the  first  important  conse- 
quence which  flows  from  the  influence  of  Natural  upon  International  Law 
is,  that  the  latter  is  not  confined  in  its  application  to  the  intercourse  of 
Christian  nations,  still  less,  as  it  has  been  affirmed,  of  European  nations, 
but  that  it  subsists  between  Christian  and  Heathen,  and  even  between 
two  Heathen  nations,  though  in  a  vaguer  manner  and  less  perfect  condi- 
tion than  between  two  Christian  communities ;  so  that  whenever  commu- 
nities come  into  contact  with  each  other,  before  usage  or  custom  has 
ripened  into  a  quasi  contract,  and  before  positive  compacts  have  sprung 
up  between  them,  their  intercourse  is  subject  to  a  Law.(&) 

Lord  Stowell,  in  one  of  those  judgments  in  the  British  High  Court  of 
Admiralty  which  contain  a  masterly  exposition  of  the  principles  of  In- 
ternational Jurisprudence,  speaking  of  the  Mahometan  States  in  Africa, 
observed,  "It  is  by  the  law  of  treaty  only  that  these  nations  hold  them- 
selves *bound,  conceiving  (as  some  other  people  have  foolishly  r  ^~-  -i 
imagined)  that  there  is  no  other  law  of  nations,  but  that  which  L 
is  derived  for  positive  compact  and  convention."(c)  The  true  principle 
is  clearly  stated  in  the  manifesto  of  Great  Britain  to  Russia,  in  1780 : 
"  His  Majesty,"  it  is  said  in  that  state  paper,  "  has  acted  towards 
,  friendly  and  mutual  powers  according  to  their  own  procedure  respecting 
Great  Britain,  and  conformable  to  the  clearest  principles  generally 
acknowledged  as  the  Law  of  Nations,  being  the  only  law  between  pow- 
ers where  no  treaties  subsist,  and  agreeable  to  the  tenor  of  his  different 
engagements  with  others;  those  engagements  have  altered  this  primitive 
law  by  mutual  stipulations  proportioned  to  the  will  and  convenience  of 
the  contracting  parties."(f?) 

Montesquieu  was  not  ignorant,  as  has  been  supposed,  of  the  science  of 
International  Law  when  he  said,  "  Toutes  les  nations  ont  un  droit  des 
gensj  et  les  Iroquois  memes  qui  mangent  leurs  prisonniers  en  ont  un. 
Us  envoient  et  recoivent  des  ambassades :  ils  connoissent  des  droits  de 
la  guerre  et  de  la  paix  :  le  mal  est  que  ce  droit  des  gens  n'est  pas  fonde 
sur  les  vrais  principes."(e)  In  other  words,  these  barbarous  nations  ac- 
knowledged, even  while  polluted  by  such  abominations,  that  certain  rules 
were  to  be  reciprocally  observed  in  their  intercourse  with  each  other, 
whether  in  Peace  or  War — even  as  the  savages  who  practise  infanticide 
do  homage  to  the  Moral  Law  in  holding  ingratitude  to  be  infamous. 

(b)  So  Mr.  Jenkinson  (afterwards  Earl  of  Liverpool,)  in  his  .able  treatise  "  On 
the  Conduct  of  the  Government  of  Great  Britain  in  1758,"  observes  (p.  29) — "I 
shall  therefore  examine  the  right  which  neutral  powers  claim  in  this  respect,  first, 
according  to  the  law  of  nations — that  is  according  to  those  principles  of  natural 
law  which  are  applicable  to  the  conduct  of  nations,  such  as  are  approved  by  the 
ablest  writers  and  practised  by  states  the  most  refined.     I  shall  then  consider  the 
alterations  which  have  been  made  in  this  right  by  those  treatise  which  have  been 
superadded  to  the  law  of  nations,  and  which  communities  for  their  mutual  benefit, 
have  established  among  themselves." 

"  Jus  hoc  (i.  e.  legationis)  non  ut  jus  naturale  ex  certis  rationibus  certo  oritur, 
sed  ex  voluntate  gentium  modum  accipit."  Here  the  distinction  between  natural 
and  conventional  international  law  is  clearly  laid  down. — Grot.  lib.  ii.  c.  xviii.  4,  2. 

(c)  Robinson's  Admiralty  Reports  (The  Helena,)  vol.  iv.  p.  1. 

(d)  Ann.  Regis,  vol.  xxiii.  p.  348,  Manifesto  of  England  to  Russia,  April  23d,  1780. 

(e)  Montesquieu,  de  1'Esprit  des  Lois,  lib.  i.  c.  iii. 


60  PHILLIMORE    ON    INTERNATIONAL    LAW. 

In  the  same  spirit  an  eminent  writer  on  English  Criminal  La 
speaking  of  the  immunities  of  Ambassadors,  says :  "  But  for  murder  an 
other  offences  of  great  enormity,  which  are  against  the  light  of  nature 
r  *oo  -i  an^  tne  fundamental  laws  of  *all  society,  the  pers  ons  mentioned 
L  J  in  this  section  are  certainly  liable  to  answer  in  the  ordinary 
course  of  justice,  as  other  persons  offending  in  the  like  manner  are.  For 
though  they  may  be  thought  not  to  owe  allegiance  to  the  Sovereign,  and 
so  to  be  incapable  of  committing  high  treason,  yet  they  are  to  be  con- 
sidered as  members  of  society,  and  consequently  bound  by  that  eternal 
universal  law  by  which  all  civil  societies  are  united  and  kept  together."^) 
Vattel  says :  "  Les  nations  etant  libres,  independantes,  egales,  et  cha- 
cune  devant  juger  en  sa  conscience  de  ce  qu'elle  a  a  faire  pour  remplir 
ces  devoirs,  &c.  celle  qui  a  tort  peche  contre  sa  conscience."  (li) 

XXXI.  But  if  the  precepts  of  Natural  Law  are  obligatory  upon 
Heathen  States  in  their  intercourse  with  each  other,  much  more  are  they 
binding  upon  Christian  Governments  in  their  intercourse  with  Heathen 
Stales. 

Infidel  Nations  indeed  are,  it  has  been  frequently  held,  entitled,  in  the 
absence  of  any  compact,  to  an  indulgent  application  of  rules  derived  ex- 
clusively from  the  positive  law  and  established  custom  of  Christian , 
States,(t)  though  the  application  of  rules  even  from  these  sources  becomes 
*more  stringent  as  the  intercourse  increases  between  the  Chris- 
tian  and  the  Infidel  community. 

The  great  point,  however,  to  be  established  is,  that  the  principles  of 
international  justice  do  govern,  or  ought  to  govern,  the  dealings  of  the 
Christian  with  the  Infidel  community.  They  are  binding,  for  instance, 
upon  Great  Britain,  in  her  intercourse  with  the  native  powers  of  India ; 
upon  France,  with  those  of  Africa ;  upon  Russia,  in  her  relations  with 

(/)  Foster  on  Crown  Law,  p.  188  ;  Ward's  Law  of  Nations,  vol.  ii.  p.  542.  The 
correctness  of  the  application  of  this  principle  to  the  case  of  ambassadors  will  be 
considered  hereafter. 

(</)  See,  in  the  Annual  Register  for  1840,  vol.  Ixxxii.  p.  429,  the  Chinese  Com- 
missioner's letter  to  the  Queen  of  England,  in  which  he  recognises  "the  principles 
of  eternal  justice"  as  binding  between  nations. 

(A)  Vattel  Prelim,  s.  21. 

(i]  Lord  Stowell  speaks  of  the  Ottoman  Porte  as  a  State  long  connected  with 
this  country  by  ancient  treaties,  and  at  the  present  day  (i.  e.  in  1802)  by  engage- 
ments of  a  peculiar  nature.  "  But,"  he  adds,  "  independently  of  such  engagements, 
it  is  well  known  that  this  Court  is  in  the  habit  of  showing  something  of  a  pecu- 
liar indulgence  to  persons  of  that  part  of  the  world.  The  inhabitants  of  those 
countries  are  not  possessors  of  exactly  the  same  Law  of  Nations  with  ourselves. 
In  consideration  of  the  peculiarities  of  their  situation  and  character,  the  Court 
has  repeatedly  expressed  a  disposition  not  to  hold  them  bound  to  the  utmost  rigour 
of  that  system  of  public  laws  on  which  European  States  have  so  long  acted  in 
their  intercourse  with  one  another." — The  Modanna  del  Burso,  4  Robinson's  Adm. 
Rep.  p.  172. 

And  again  he  says  :  "  It  has  been  argued  that  it  would  be  extremely  hard  on 
persons  residing  in  the  kingdom  of  Morocco,  if  they  should  be  held  bound  by  all 
the  rules  of  the  Law  of  Nations  as  it  is  practiced  among  European  States.  On 
many  accounts,  undoubtedly,  they  are  not  to  be  so  strictly  considered  on  the  same 
footing  as  European  merchants :  they  may,  on  some  points  of  the  Law  of  Nations, 
be  entitled  to  a  very  relaxed  application  of  the  principles  established  by  long  usage 
between  the  States  of  Europe  holding  an  intimate  and  constant  intercourse  with 
each  other." — The  Hurtige  Hane,  3  Robinson's  Adm.  Rep.  p.  326. 


SOURCES    OF    INTERNATIONAL      LAW.  61 

Persia  or  America;  upon  the  United  States  of  North  America,  in  their 
intercourse  with  the  native  Indians.  (7^) 

The  violation  of  these  principles  is  indeed  sometimes  urged  in  support 
of  an  opposite  opinion,  but  to  no  purpose ;  for  it  is  clear  that  the  occa- 
sional vicious  practice  cannot  affect  the  reality  of  the  permanent  duty. 

XXXII.  Unquestionably,  however,  the  obligations  of  International 
Law  attach  with  greater  precision,  distinctness,  and  accuracy  to  Christian 
States  in  their  commerce  with  each  other.(?)  The  common  profession  of 
Christianity  both  *enforces  the  observance(ra)  of  Natural  Law,  r  ^A  T 
and  introduces,  according  to  the  language  of  Bartolus,  a  "  speciale  L 
jus  gentis  fidelis"  (n}  a  new  and  most  important  element  into  this  as  into 
all  other  systems  of  jurisprudence ;  Christianity  imparts  a  form  and 
colour  of  its  own  to  those  elements  of  public  justice  and  morality  which 
it  finds  already  existing  in  these  systems,  while  it  binds  together  by  close 
though  invisible  ties  the  different  members  of  Christendom,  not  destroy- 
ing indeed  their  individuality,  but  constituting  a  common  bond  of  reci- 
procal interest  in  the  welfare  of  each  other,  in  lieu  of  that  exclusive 
regard  for  isolated  nationality,  which  was  the  chief,  though  certainly  not 
the  sole  end  proposed  to  itself  by  the  Heathen  State.  The  language  of 
the  principal  treaties  of  Europe  fully  recognizes  this  doctrine. (o) 

(&)  Hyder  AH  was  invited  by  France  and  England  to  accede  to  the  treaty  by 
which  the  status  quo  atte  bellum  was  established  in  India. — Wheaton's  History  of 
Int.  Law,  p.  305. 

Heineccius,  in  Grotium  Prsef.  v.  i.  p.  14:  "  Quid  ver6  si  gens  quaedam  cum  Tur- 
ds vel  Sinensibus,"  &c. 

"Now,  having  contended,  as  we  still  contend,  that  the  Law  of  Nations  is  the 
law  of  India  as  well  as  of  Europe,  because  it  is  the  law  of  reason  and  the  law  of 
nature,  drawn  from  the  pure  sources  of  morality,  of  public  good,  and  of  natural 
equity,  and  recognised  and  digested  into  order  by  the  labour  of  learned  men,  I 
will  refer  your  lordships  to  Vattel,  b.  i.  c.  xvi.,  where  he  treats  of  such  engage- 
ments," &c. — Burke's  Works,  xv.  109,  (Speech  on  the  Impeachment  of  Warren' 
Hastings  ;  Cranch's  Reports  (American,)  vol.  v.  p.  1 ;  Peters's  Reports  (American,) 
vol.  v.  p.  1 ;  Kent's  Commentaries,  vol.  iii.  p.  382  ;  Wheaton's  Elements  du  Droit 
International,  i.  50. 

(I)  The  Canon  Law,  which  is,  with  some  exceptions,  International  Ecclesiastical 
Law,  took  a  distinct  and  especial  cognizance  of  General  International  Law,  and 
valuable  remarks  upon  it  are  to  be  found  in  the  commentators  on  the  Decretum. 
Decret.  Prima  Pars,  dist.  i.  c.  ix :  "  Jus  gentium  est  sedium  occupatio,  sedificatio, 
munitio,  bella,  captivitates,  servitutes,  postliminia,  fcedera,  paces,  induciae,  lega- 
tprum  non  violandorum  religio,  connubia  inter  alienigenas  prohibita  (sect.  1.) 
Hoc  inde  jus  gentium  appellatur,  quia  eo  jure  omnes  fer6  gentes  utuntur."  The 
great  Portuguese  canonist,  Barbosa,  observes  on  this  :  "  Si  princeps  velit  vel  jus 
gentium  primarium,  vel  secundariumintra.  sui  imperil  limites  abrogare,  potestate  sua 
abuti  censendus  est." — Barbos.  Collect,  in  c.  ix.  dist.  i.  See,  too,  Reiffenstuel  and 
Schmalzgrueber  on  the  same  passage  in  the  Decretum. 

(m)  Clement  the  Fifth,  in  his  Bull  "  Pastoralis,"  annulling  the  extraordinary 
semi-legal  procedure  by  which  the  Emperor  Henry  VII.,  meant  to  deprive  Robert, 
king  of  Naples  of  his  kingdom,  stated,  among  other  reasons,  that  Robert  had  been 
deprived  of  a  natural  right — viz.,  the  means  and  opportunity  of  defending  him- 
self: "  Per  quse  de  crimine  praesertim  sic  quasi  delete  defensionis  (quce  a  jure  prove- 
nit  naturali)  facultas  adimi  valuisset;"  and,  he  adds,  "  Cum  ilia  imperatori  tollerenon 
licuerit  quce  juris  naturalis  existunt." — Clement,  1.  ii.  t.  xi. 

(n)  "  Si  enim  jus  gentium  de  servitute  captivorum  in  bello  justo  in  Ecclesia  mu- 
tatum  est,  et  inter  Christianos  id  non  servatur  ex  antiqua  Eclesiae  consuetudine 
quae  est  veluti  speciale  jus  gentis  fidelis  ut  notavit  Bartolus  in  1.  hostis  ss  de  cap- 
tivis,  n.  16." — Suarez,  Ib.  c.  xx.  s.  8. 

(o)  Treaty  of  Westphalia  (Munster,)  1648 :  "  Au  nom  et  a  la  gloire  de  Dieu  soit 


62  PHILLIMORE    ON    INTERNATIONAL    LAW. 

~_  *XXXIII.  This  would  be  called  by  many  who  have  of  late 
L  J  yeajs  written  on  the  science,  International  Morality :  they  would 
restrict  the  term  Law  absolutely  and  entirely  to  the  treaties,  the  customs, 
and  the  practice  of  nations. 

If  this  were  a  mere  question  as  to  the  theoretical  arrangement  of 
the  subject  of  International  Law,  it  would  be  but  of  little  importance ; 
and  the  disputes  to  which  the  different  modes  of  treating  the  science  have 
given  rise  would  perhaps  be  found,  upon  careful  examination,  to  resolve 
themselves  for  the  most  part  into  disagreements  of  a  verbal  character. 
But  it  is  of  great  practical  importance  to  mark  the  subordination  of  the 
law  derived  from  the  consent  of  States  to  the  law  derived  from  Grod.(p) 
T  *9fi  1  *XXXIV.  One  important  practical  inference  from  this  position 
L  J  is,  as  has  been  shown,  the  necessary  existence  of  International 
Obligations  between  Christian  and  Heathen  States.  Another  practical 
consequence  is,  that  the  Law  derived  from  the  consent  of  Christian  States 
is  restricted  in  its  operation  by  the  Divine  Law;  and  just  as  it  is  not 
morally  competent  to  any  individual  State  to  make  laws  which  are  at 
variance  with  the  law  of  God,  whether  natural  or  revealed,  so  neither  is 

notoire  a  tous,  &c. ;  eux  Seigneurs  Roi  et  Etats  touches  de  compassion  Chretienne 
&c. ;  au  bien  non  seulement  des  Pays-Bas,  mais  de  toute  la  Chretiente  convians 
et  prians  les  autres  Princes  et  Potentats  d'icelle  de  se  laisser  flechir  par  la  Grace 
Divine  a  la  tneme  compassion,"  &c. — Schmauss,  Corpus  Jur.  Gent.  Acad.  i.  614. 

Treaty  of  Paris,  1763:  "  Au  nom  de  la  tres-sainte  et  indivisible  Trinite,  Pere, 
Fils,  et  Saint  Esprit,  ainsi  soit-il.  Soit  notoire  a  tous  ceux  qu'il  appartiendra,  &c. : 
II  a  plu  au  Tout-puissant  de  re'pondre  1'esprit  d'union  et  de  Concorde  sur  les  Princes, 
dont  les  divisions  avaient  porte"  le  trouble  dans  les  quatres  parties  du  monde,  &c. 
(Artie.  1).  II  y  aura  une  Paix  Chretienne  universelle  et  perpetuelle,"  &c. — Wenckii 
Codex  Juris  Gentium,  iii.  329. 

Treaty  of  Utrecht,  1713  :  "Quoniam  visum  est  Deo  optimo  maximo,  pro  nomi- 
nis  sui  gloria,  et  salute  universa,  ad  miserias  desolati  orbis  jam  suo  in  tempore  me- 
dendas,  ita  regum  animos  dirigere  ut  mutuo  pacis  studio  erga  se  invicem  gerantur ; 
notum  sit,  &c. :  Quod  sub  his  Divinis  auspiciis  Seren.  ac  Poten.  Princeps  et  Domina 
Anna,  &c.  &c.,  et  S.  ac  P.  Prin.  et  Dom.  Ludovicus  XIV.,  &c.,  totius  Christiani  orbis 
tranquillitate  prospicientes,  &c.  suo  proprio  motu  et  paterna  ea  cura  quam  ergo 
subditos  suos  et  Rempublicam  Christianam  exercere,  amant,"  &c. — Schmauss,  ii. 
1312. 

Treaty  of  Versailles,  1783,  Art.  1 :  "  II  y  aura  une  Paix  Chretienne  universelle 
et  perpetuelle  tant  par  mer  que  par  terre,"  &c. — Recueil  de  Traite"s  et  de  Conven- 
tions, De  Martens  et  De  Cussy,  i.  301. 

Treaty  of  Vienna,  1815:  "  Au  nom  de  la  tres-sainte  et  indivisible  Trinite. — De 
M.  et  C.  iii.  61. 

"  Deux  lois  suffisent  pour  re"gler  tout  la  republique  Chretienne,  mieux  que  toutes  les 
lois  politiques — 1'amour  de  Dieu,  et  celui  du  prochain." — Pascal  Pens^es,  part  ii. 
art.  xvii. 

(p)  Savigny,  R.  R.  i.  80  ;  Burke,  vol.  viii.  182,  Letters  on  a  Regicide'  Peace. 

Suarez :  De  Legibus  a  Deo  Legislatore,  1.  ii.  c.  ii.  s.  6,  tit.  De  Lege  Sterna  et 
Naturali  ac  Jure  Gentium. 

Grot,  de  J.  Bel.  &  P.  1.  ii.  c.  iii.  s.  6. 

Voet  ad  Pandectas,  lib.  i.  t.  i.  s.  19.  p.  11.     Vattel  Prsef.  22. 

"  Quod  si  populorum  jussis,  si  principum  decretis,  si  sententiis  judicum,  jura 
constituerentur  :  jus  esset  latrocinari ;  jus  adulterare ;  jus  testamenta  falsa  suppo- 
nere :  si  hsec  suffragiis  aut  scitis  multitudinis  probarentur.  Quae  si  tantae  potestas 
est  stultorum  sententiis  atque  jussis,  ut  eorum  suffragiis  rerum  natura  vertatur: 
cur  non  sanciunt,  ut  quae  mala  perniciosaque  sunt,  habeantur  pro  bonis  ac  saluta- 
ribus  ?  aut  cur,  quum  jus  ex  injuria  lex  facere  possit,  bonum  eadem  facere  non 
possit  ex  malo  ?  Atqui  nos  legem  bonam  a  malo  nulla  alia  nisi  naturas  norma 
dividere  possumus." — Cic.  de  Leg.  1.  i.  c.  xvi. 


SOURCES    OP    INTERNATIONAL    LAW.  03 

ifc  morally  competent  to  any  assemblage  of  States  to  make  treaties  or 
adopt  customs  which  contravene  that  Law. 

Positive  Law,  whether  National  or  International,  being  only  declara- 
tory,^) may  add  to,  but  cannot  take  from  the  prohibitions  of  Divine 
Law.  "Civilis  ratio  civilia  quidem  jura  corrumpere  potest,  uaturalia  non 
utique"(r)  is  the  language  of  Roman  Law;  and  is  in  harmony  with  the 
voice  of  International  Jurisprudence,  as  uttered  by  Wolff:  "Absit  vero,  ut 
existimes,  jus  gentium  volunl  .rium  ab  earum  voluntate  ita  proficisci,  ut 
libera  sit  earum  in  eodem  *condendo  voluntas,  et  stet  pro  ratione  r  ^~,  -, 
sola  voluntas,  nulla  habita  ratione  juris  naturalis."(s) 

Upon  this  principle  we  may  unhesitatingly  condemn  as  illegal  and 
invalid  all  secret  articles  in  treaties  opposed  to  the  stipulations  which  are 
openly  expressed.  Upon  this  principle  it  is  clear  that  a  custom  of  coun- 
tries to  destroy  and  plunder  foreigners  shipwrecked  upon  their  shores 
must  always,  and  under  all  circumstances  be  an  outrage  upon  the  rights 
of  nations.  So  with  respect  to  an  usage  of  imprisoning  strangers  who 
have  innocently  arrived  in  time  of  peace,  under  a  lawful  flag,  into  a 
foreign  port,  on  the  ground  that  they  are  free  men  of  that  particular 
colour  or  complexion,  which  disquiets  the  slaveholder  of  the  country, 
inasmuch  as  his  slaves,  being  of  the  same  colour  and  complexion,  are,  by 
the  presence  of  the  free  strangers,  reminded  of  the  possibility  of  becoming 
free  also ;  so,  if  there  existed  in  a  country  under  the  government  of  an 
autocrat  a  law  or  custom  of  imprisoning  all  strangers  having  peaceably 
arrived  from  a  country  under  a  republican  form  of  government — any  usage 
of  this  or  the  like  kind,  however  inveterate,  however  sanctioned  by  Mu- 
nicipal Law,  however  accordant  with  national  feeling,  must  always  be  a 
grievous  violation  of  International  Justice.  Upon  the  same  principle 
Grotius  condemns  the  violation  of  women  in  time  of  war,  as  an  undoubted 
breach  of  International  Law  among  all  Christian  nations. (fy  In  the  same 
manner  and  for  the  same  reason  he  denies  that  captives  can  be  lawfully 
made  slaves,  and  either  sold  or  condemned  to  the  labour  of  slaves. 

(q)  "  It  \vould  be  hard  to  point  out  any  error  more  truly  subversive  of  all  the 
order  and  beauty,  of  all  the  peace  and  happiness  of  human  society,  than  the  posi- 
tion that  any  body  of  men  hare  a  right  to  make  what  laws  they  please,  or  that 
laws  can  derive  any  authority  from  their  institution  merely,  and  independent  of 
the  quality  of  the  subject  matter.  All  human  laws  are,  properly  speaking,  only 
declaratory.  They  may  alter  the  mode  and  application,  but  have  no  power  over 
the  substance  of  original  justice." — Burke's  Treatise  on  the  Popery  Laws. 

"  That  power  which,  to  the  legitimate,  must  be  according  to  that  immutable  law 
in  which  will  and  reason  are  the  same." — Burke's  Works,  vol.  v.  p.  180  (Thoughts 
on  the  French  Revolution). 

(r)  Instit.  de  Legit,  Aguat.  1.  iii. 

(«)  Wolff,  Jus  Gent.  Praf. 

(t)  The  prohibition  even  among  heathen  nations  was,  he  observes,  "  Jus  genti- 
um, non  omnium,  sed  meliorum ;"  but  amongst  Christian  nations,  he  proclaims  it 
as  an  undoubted  principle:  "Atque  id  inter  Christianas  observari  par  est,  non 
tantum  ut  disciplinae  militaris  partem  sed  et  at  partem  juris  gentium — id  est  ut 
qui  pudicitiam  vi  loesit,  quamvis  in  bello,  ubique  paenae  sit  obnoxius." — lib.  iii.  c. 
v.  s.  2. 

"Sed  et  Christianis  in  universum placuit  bello  inter  ipsos  orto  captos  servos  non 
fieri,  ita  ut  vendi  possunt  ad  operas  urgeri,  et  alia  pati  qu«  servorum  sunt  atque 
ita  hoc  saltern  quemquam  exiguum  est  perfecit  reverentia  Christianse  legis." — lib. 
iii.  c.  vii.  s.  9. 


64  PHILLIMORE     ON     INTERNATIONAL     LAW. 

r  *XXXV.  This  branch  of  the  subject  may  be  well  concluded 

-1  by  the  invocation  of  some  high  authorities  from  the  jurisprudence 
of  all  countries,  in  support  of  the  foregoing  opinion. 

Grotius,  says  emphatically :  "Nimirum  humana  jura  multa  constituere 
possunt  prseter  naturam,  contra  nihil."(«) 

John  Voet  speaks  with  great  energy  to  the  same  effect :  "Quod  si  contra 
recta  rationis  dictamen  gentes  usu  quaedam  introduxerint,  non  ea  jus  gen- 
tium recte  dixeris,  sed  pessimam  potius  morum  Jiumani  generis  corrup- 
telam."(x} 

Suarez,  who  has  discussed  the  philosophy  of  law  in  a  chapter  which 
contains  the  germ  of  most  that  has  been  written  upon  the  subject,  says : 
"Leges  autein  ad  jus  gentium  pertinentes  verae  leges  sunt,  ut  explicatum 
manet,  propinquiores  sunt  legi  natural!  quam  leges  civiles  ideoque  im- 
possibile  est  esse  contrarias  aequitati  naturali."^) 

Wolff,  speaking  of  his  own  time,  says:  "Omnium  fere  animos  occu- 
pavit  perversa  ilia  opinio,  quasi  fons  juris  gentium  sit  utilitas  propria : 
unde  contingit,  id  potentiaa  coaequari.  Damnamus  hoc  in  privatis,  damna- 
mus  in  rectore  civitatis;  sed  seque  idem  damnandum  est  in  gentibus"(z} 

Mackintosh  nobly  sums  up  this  great  argument :  "  The  duties  of  men, 
of  subjects,  of  princes,  of  lawgivers,  of  magistrates,  and  of  states,  are  all 
parts  of  one  consistent  system  of  universal  morality.  Between  the  most 
abstract  and  elementary  maxim  of  moral  philosophy,  and  the  most  com- 
plicated controversies  of  civil  or  public  law,  there  subsists  a  connection. 
The  principle  of  justice,  deeply  rooted  in  the  nature  and  interest  of  man, 
pervades  the  whole  system,  and  is  discoverable  in  every  part  of  it,  even 
to  its  minutest  ramification  in  a  legal  formality,  or  in  the  construction  of 
an  article  in  a  treaty. "(a) 


[*29]  .         *CH AFTER  IV. 

REASON   OP   THE   THING. 

XXXVI.  The  next  question  which  arises  in  the  prosecution  of  our 
inquiries  into  the  sources  of  International  Jurisprudence  is  this — How 
are  the  principles  of  Natural  or  Revealed  Law  to  be  applied  to  States  ? 

Though  States  are  properly  and  by  a  necessary  metaphor  treated  as 
moral  persons,  and  as  the  subjects  of  those  rights  and  duties  which 
naturally  spring  from  the  mutual  relations  of  individuals  and  self-con- 
scious agents  ;  nevertheless  it  must  be  recollected  that  a  State  is  actually 
a  different  thing  from  an  individual  person.  Reason,  therefore,  which 
governs  the  application  of  common  principles  to  diverse  subjects,  may  be 

De.  J.  B.  et  P.  lib.  ii.  c.  vi.  s.  6. 

Comment,  ad  Pand.  de  Just,  et  Jure,  t.  i.  s.  19. 

Lib.  ii.  c.  xx.  s.  3  :  De  Lege  JEternfi  et  Natural!  ac  Jure  Gentium. 

Jus  Gent.  s.  163. 

Discourse  on  the  Law  of  Nature  and  Nations. 


REASON     OF    THE    THING.  65 

regarded  as  a  distinct  source  of  International  Law,  and  demands,  there- 
fore, a  different  application  of  principles  intrinsically  the  same. (a) 

This  application  must  be  made  justly,  and  in  a  manner(i)  suitable 
to  this  actual  difference;  and  in  order  to  effect  this,  the  reason  of  the 
thing,"  which  has  been  already  enumerated  as  one  of  the  sources  of 
International  Law — "  necessitas  finis  quae  jus  facit  in  moralibus"(c) — 
must  in  all  cases  be  considered. 

Yattel,  following  and  improving  upon  "Wolff,  expresses  himself  upon 
this  point  with  his  usual  clearness,  and  more  than  his  usual  force. (<#) 
There  are  many  cases,  he  observes,  *in  which  Natural  Law  can-  .-  ^n  -i 
not  decide  between  nation  and  nation  as  it  would  between  indivi-  L 
dual  and  individual.  It  is  necessary  to  learn  the  mode  of  applying  the 
law  in  a  manner  agreeable  to  the  subject ;  and  it  is  the  art  of  doing 
this  according  to  justice,  founded  on  right  reason,  which  makes  Interna- 
tional Law  a  particular  science.  It  must,  as  Grotius  says,(e)  be  "  recta 
illatio  ex  naturae  principiis  procedens"  which  guides  the  national  con- 
science in  its  international  duties. 

XXXVII.  The  most  strenuous — it  might  be  said  the  most  vehement 
— advocate  for  this  source  of  International  Jurisprudence  is  Bynkershoek. 
There  is  no  dissertation  of  his  upon  any  subject  of  International  Juris- 
prudence which  does  not  teem  with  references  to  it.  "  Ratio"  and 
"  Usus"  are,  according  to  him,  the  two  props  which  sustain  the  whole 
building ;  and  "  Recta  ratio"  is  "  Juris  gentium  magistra." 

The  tendency  of  this  author,  who  ranks  in  the  first  class  of  jurists,  is 
rather  perhaps  to  undervalue  the  authority  both  of  his  predecessors  and 
of  the  tribunals  of  his  own  country.  His  opinion  on  this  matter,  how- 
ever, construed  by  reference  to  the  context,  and  subject  to  the  qualifica- 
tion which  it  must  receive  from  his  frequent  reliance  upon  precedents, 
and  upon  the  opinions  both  of  jurists  and  civilians,  contains  in  reality 
nothing  objectionable  or  inconsistent  with  the  doctrine  of  other  writers(/) 
with  respect  to  the  international  authority  due  to  these  precedents  and 
these  opinions. 

Bynkershoek  was  very  far  from  meaning  to  convey  the  notion  that 
whenever  a  question  arose  between  nations,  either  of  the  contending 
parties  was  at  liberty  to  solve  it  arbitrarily,  according  to  its  own  notions 
of  convenience  or  by  an  independent  process  of  reasoning.  On  the  con- 
trary, in  every  case  of  doubt,  the  reason  which  long  usage  had  sactioned 
was  to  prevail ;  and  the  authorities  of  writers  and  of  precedents  were  also 
recognised  as  leading  to  a  *just  conclusion  of  Law.  But  he  more  r  ^o-\  n 
especially  recognised  the  fitness  of  one  authority  to  direct  and  L 
guide  the  Reason  of  States  in  the  adjustment  of  their  mutual  relations ; 
that  authority  was  the  written  reason  of  the  Roman  Law. 

His  predecessors  indeed,  in  every  page  of  their  writings,  had  assumed 
as  unquestionable  the  homage  due  to  this  collection  of  the  maxims 

• 

(a)  Vattel,  Preface,  p.  22,  23. 

f  b)  Kara  T)IV  vTroKa/jEj^v  tJX/jv. — Arist.  Eth.  i. ;  "Wolff,  Jus  Gentium,  Praef. 

(c)  Grot,  de  J.  B.  et  P.  1.  ii.  c.  v.  24,  s.  2. 

(d)  Vattel,  ib.  et  Prelim,  s.  6.  (e)  Proleg.  s.  40. 
(/)  Vattel,  Prelim,  s.  6.     And  see  Appendix  to  this  "Work. 


66  PHILLIMORE     ON     INTERNATIONAL     LAW. 

deducible  from  right  reason  and  natural  justice.  None,  however,  have 
spoken  more  strongly  with  respect  to  it  than  Bynkershoek  :  "  Non  quod, 
in  Us,"  he  says,  quae  sola  ratio  commendat  a  jure  Romano  ad  jus  gen- 
tium non  tula  sit  collectio."  (g) 

And  again  :  "  Quamvis  non  de  populi  Romani,  sed  de  gentium  juris- 
prudentia  agamus  non  abs  re  tamen  erifc  de  jure  Romano  quaedarn 
prsemonuisse,  cum  qui  id  audit  vocem  fere  omnium  gentium  videatur 


Again:  "Abstine  commodo  si  damnum  metuis,  ipsa  juris  gentium, 
non  sola  Ulpiani  vox  est.(i) 

XXXVIII.  The  Roman  Law  may  in  truth  be  said  to  be  the  most 
valuable  of  all  aids  to   a  correct  and  full  knowledge  of  international 
jurisprudence,    of  which  it  is  indeed,  historically  speaking,  the  actual 
basis  ;  and  it  has  been  remarked  with  equal  force  and  elegance  by  an 
English  civilian,  "  That  although  whatever  we  read  of  in  the  text  of  the 
Civil  Law  was  not  intended  by  the  Roman  legislators  to  reach  or  direct 
beyond  the  bounds  of  the  Roman  empire,  neither  could  they  prescribe 
any  law  to  other  nations  which  were  in  no  subjection  to  them  ....... 

Yet  since  (j)  there  is  such  a  strong  stream  of  natural  reason  continually 
flowing  in  the  channel  of  the  Roman  Laws,  and  that  there  is  no  affair 
or   business  known  to  any  part  of  the  world  now  which  the  Roman 
r  *qo  T  empire  dealt  not  in  before,  and  their  *justice  still  provided(7c) 

J  for  ;  what  should  hinder  but  that,  the  nature  of  affairs  being  the 
same,  the  same  general  rule  of  justice,  and  dictates  of  reason,  may  be  as 
fitly  accommodated  to  foreigners  dealing  with  one  another  (as  it  is  clear 
that  they  have  been  by  the  civilians  of  all  ages,)  as  to  those  of  one  and 
the  same  nation,  -when  one  common  reason  is  a  guide  and  a  light  to 
them  both;  for  it  is  not  the  persons,  but  the  case,  and  the  reason  therein, 
that  is  considerable  altogether."(Z) 

In  the  case  of  the  Maria,(m)  Lord  Stowell  expresses  surprise  that 
Vattel  should  mention  a  rule  of  International  Law  as  a  law  merely 
modern,  when  it  is  remembered  that  it  is  a  principle  not  only  of  the 
Civil  Law  (on  which  a  great  part  of  the  Law  of  Nations  is  founded,)  but 
of  the  private  jurisprudence  of  most  countries  in  Europe  —  that  a  con- 
tumacious refusal  to  submit  to  fair  inquiry  infers  all  the  penalties  of 
convicted  guilt." 

XXXIX.  Independently  of  the  historical  value  of  the  Roman  Law  as 
explanatory  of  the  terms  aci  sense  of  treaties,  and  of  the  language  of 
jurists,  its  importance  as  a  repository  of  decisions,  the  spirit  of  which 

(g)  Qusestiones  Juris  Publici,  1.  i.  c.  iii.  (A)  De  Foro  Legat.  c.  vi. 

(i)  Quasst.  J.P.  c.  viii.  in  fine.  The  passage  cited  from  Ulpian  will  be  found  Dig. 
lib.  xvii.  t.  ii.,  s.  23.  —  Pro  socio  —  "  abstine  commodo,  quod  per  servum  accessit,  si 
damnum  petis." 

(/)  Albericus  Gentilis,  1.  i.  ;  de  Jure  Belli,  c.  i. 

(k)  "  Minim  tamen  est  hanc  novam  prudentiam,  Romanos,  a  quibus  ad  omnes 
populos  juris  fecialis,  justitise  fontes  purissimi  manarunt,  antea  semper  latuisse."  — 
Bod.  de  Rep.  1.  v.  c.  vi.  p.  594. 

(I)  Wiseman's  Excellency  of  the  Civil  Law,  p.  110;  Burke,  viii.  185  ;  Letters  on 
a  Reg.  Peace. 

(m)  1  Robinson's  Adm.  Rep.  p.  363. 


REASON     OF    THE    THING.  C7 

almost  always,  and  the  letter  of  which  very  frequently,  is  applicable  to 
the  controversies  of  independent  States,  can  scarcely  be  over-stated. 

From  this  rich  treasury  of  the  principles  of  universal  jurisprudence,  it 
will  generally  be  found  that  the  deficiencies  of  precedent  usage,  and 
express  international  authority,  may  be  supplied. 

Throughout  the  greater  portion  of  Christendom  it  presents  to  each 
State  what  may  be  fairly  termed  their  own  consent,  bound  up  in  the 
municipal  jurisprudence  of  their  own  country;  *and  this  not  r^oo-] 
merely  to  the  nations  of  Europe,  whose  codes  are  built  on  the  L 
Civil  Law,  but  to  their  numerous  Colonies,  and  to  the  independent  States 
which  have  sprung  from  those  Colonies,  and  which  cover  the  globe. 

And  so  we  find  that  the  Roman  Law  was  more  than  once  referred  to 
as  an  authority,  upon  the  international  question  of  the  Free  Navigation 
of  Boundary  Rivers,  by  the  president  and  diplomatic  ministers  of  the 
United  States  of  North  America,  in  the  discussion  which  took  place  be- 
tween this  Republic  and  the  kingdom  of  Spain,  as  to  the  navigation  of 
the  Mississippi,  in  the  year  1792 ;  and  to  all  nations,  whatsoever  and 
wheresoever,  this  law  presents  the  unbiassed  judgment  of  the  calmest 
reason,  tempered  by  equity,  and  rendered  perfect,  humanly  speaking,  by 
the  most  careful  and  patient  industry  that  has  ever  been  practically 
applied  to  the  affairs  of  civilized  man. 

It  may  be  fairly  said,  that  almost  all  International  disputes  in  time 
of  peace  might  be  adjusted  by  this  providentially  appointed  arbiter, 
assisted  by  the  helps,  and  modified  by  the  other  sources  which  will  pre- 
sently be  considered  ;  certainly  it  may  be  most  truly  affirmed,  that  the 
greater  number  of  controversies  between  nations  would  find  a  just  solu- 
tion in  this  comprehensive  system  of  practical  equity,  "  Dixi  saepius," 
said  Leibnitz,  "  post  scripta  G-eometrarum  nihil  exstare  quod  vi  ac  sub- 
tilitate  cum  Romanorum  scriptis  comparari  possit :  tantum  nervi  inest 

tantum  profunditatis nee  uspiam  juris  naturalis  praeclare  exculti 

uberiora  vestigia  deprehendas;  et  ubi  ab  eo  recessum  est,  sive  ob  formu- 
larum  ductus,  sive  ex  majorum  traditis,  sive  ob  leges  novas,  ipsse  conse- 
quentise  ex  nova  Hypothesi  aeternis  rectaa  rationis  dictarninibus  additse, 
mirabili  ingenio  nee  minore  firmitate  deducuntur."(n) 

So  the  English  civilian  before  quoted  observes  :(o)  "  And  moreover,  by,  as 
it  were,  a  general  consent  of  nations,  *there  is  an  appealing  to,  and  r  ^ .  -. 
a  resting  in,  the  voice  and  judgment  of  the  Civil  Law  in  these  cases  L  -" 
between  nation  and  nation.  The  reason  whereof  is,  because  any  thing 
that  is  irrational,  unnatural,  absurd,  partial,  unjust,  immodest,  ignoble, 
treacherous,  or  unfaithful,  that  law  abhorreth;  and  for  that  it  is  the 
most  perfect  image  and  representation  of  nature,  and  of  the  equity  and 
reason  nature  prescribes  to  humane  actions,  that  was  ever  yet  presented 
or  set  forth  to  the  world  in  a  law." 

In  the  negotiations  between  the  United  States  of  North  America  and 
Spain  relative  to  the  navigation  of  the  Mississipi,  the  provisions  of  the 

(n)  Op.  iv.  254. 

(o)  Wiseman's  Excellency  of  the  Civil  Law,  p.  110  ;  Burke,  viii.  185,  Letters  on 
a  Reg.  Peace. 


68  PHILLIMORE     ON    INTERNATIONAL    LAW. 

Roman  Law  were  cited  with  respect  to  the  public  character  of  rivers,  to 
the  use  of  the  shores  as  incident  to  the  use  of  the  water,  and  to  the  occa- 
sional extension  of  this  incidental  right,  when  circumstances  rendered  it 
necessary  that  the  cargo  should  be  removed  further  inland,  the  shores 
being,  for  some  reason,  an  unsafe  place  of  deposit. "(p) 

XL.  It  is  hardly  necessary  to  guard  against  the  supposition  that  what 
has  been  said  applies  to  the  technical  and  formal  parts  of  the  Roman 
Code,  the  "  formularum  ductus"  just  mentioned,  or  to  those  which 
related  exclusively  to  the  particular  policy  of  the  empire ;  but  it  should 
be  remarked,  that  an  error  of  this  description  tinged  the  early  writings 
upon  International  law,  and  tended  to  bring  the  science  itself  into  disre- 
pute.(g')  It  is  the  "solida  et  mascula  ratio"  *of  Bynkershoek 
which  must  guide  and  enforce  the  application  of  it  to  the  affairs 
of  independent  nations. 

Besides  the  actual  compilations  of  Roman  Law,  the  Commentaries 
upon  them — for  the  like  reason  of  their  comprehensiveness,  impartiality, 
wisdom,  and  enlarged  equity — are  of  great  use  and  constant  service  in 
elucidating  the  rules  of  justice  between  nations. 

For  instance,  every  writer  on  the  Law  of  Embassy  relies  for  the  ele- 
mentary propositions  relating  to  it  upon  the  Commentary  of  Huber  on 
the  Civil  Law ;  and  so  Lord  Stowell,  in  the  case  of  the  Twee  Gebraeders, 
fortified  his  judgment  as  to  the  legal  marks  of  territory,  and  the  evidence 
by  which  it  is  to  be  supported,  by  reference  to  the  opinions  of  I'arrina- 
cius  Gail  and  Loccenius.(r) 

The  decisions  contained  in  the  Roman  Law  may  often  form  a  safe 
guide  even  between  nations  in  whose  Municipal  Code  it  has  no  root ;  in 
the  interpretation,  for  example,  of  agreements,  express  or  tacit,  between 
European  and  Asiatic  nations,  and  in  the  equitable  resolution  of  doubts 
and  difficulties  unforeseen  and  unprovided  for  by  the  letter  of  any  com- 
pact, (s) 

XLI.  Analogy(i)   has  great  influence  in  the  decision  of  International 

(p)  Wheaton's  Hist.  pp.  510,  511 ;  Waites'  American  State  Papers,  x.  135 — 140  ; 
Instit.  1.  ii.  t.  i.  ss.  1 — 5. 

(q)  Grotius,  de  J.  B.  et  P.  1.  iii.  c.  ix.  s.  1,  De  Postliminio :  "  Accuratius  hsec 
res  a  veteribus  Romanis  tractata  est,  sed  stepe  confuse  nimis,  ita  ut  quae  juris  gen- 
tium, quseque  civiles  Romani  esse  vellent,  lector  nequiret  distinguere."  .  .  .  .  iv. 
S.  2  ;  "  Sed  hsec  ratio  Romanorum  propria  non  potuit  constituere  jus  gentium,"  &c. 

Heineccius,  Prselect.  ad  Grotium,  Prcemium,  s.  54,  and  in  his  work  Jus  Naturae 
et  Gentium  Praefatio,  p.  14,  shows  how  the  "  Glossatores"  erred  in  their  applica- 
tion of  portions  of  the  Roman  law  to  International  questions. 

It  will  be  seen  when  the  subject  of  embassies  is  treated  of,  into  how  serious  an 
error  the  English  civilians  were  led  by  applying  the  text  of  the  Roman  law  res- 
pecting legati  as  the  rule  of  International  law  upon  the  question  of  the  privileges 
of  the  ambassador  of  Mary  Queen  of  Scots. 

(r)  3  Robinson's  Adm.  Rep.  338.  348,  349. 

(s)  The  learned  judges  of  the  English  Privy  Council,  in  deciding  questions 
arising  out  of  the  law  and  customs  of  Hindostan,  have  made  reference  to  the 
analogies  furnished  by  Roman  law — Sootragun  Satputty  v.  SabitraDye,  2  Knapp's 
Privy  Council  Reports  (Lord  Wynford) — a  case  on  the  law  of  Hindoo  adoption. 

(t)  Bynkershoek,  de  Foro  Leg.  c.  iii.  p.  446. 

By  the  ancient  law  of  Europe,  such  a  consequence  (i.  e.  the  condemnation  of  a 
ship  on  account  of  a  contraband  cargo)  would  have  ensued ;  nor  can  it  be  said 


CONSENT     OP     NATIONS.  69 

as  well  as  of  Municipal  tribunals ;  that  is  to  say,  the  application  of  the 
principle  of  a  rule,  which  has  been  adopted  in  certain  former  cases,  to 
govern  others  of  a  similar  character  as  yet  undetermined.  Of  course 
the  justice  *and  force  of  this  application  must  chiefly  depend,  r  #qfi  -, 
in  each  case,  on  the  closeness  of  the  parallel  between  the  circum-  •• 
stances  of  the  precedents  appealed  to  and  those  of  the  cases  in  dispute. 


*CHAPTEK    V.  [*37] 

CONSENT   OP   NATIONS. 

XLII.  The  next  and  only  other  source  of  International  Law  is  the 
consent  of  Nations.  The  obligations  of  Natural  and  Revealed  Law  exist 
independently  of  consent  of  men  or  nations,  and  although  the  latter 
acknowledge  no  one  superior  upon  earth,  they,  nevertheless,  owe  obedi- 
ence to  the  laws  which  they  have  agreed  to  prescribe  to  themselves,  as 
the  rules  of  their  intercourse  both  in  peace  and  war. (a) 

How  and  where  is  this  consent  expressed?  It  is  not  indeed  to  be 
found  in  any  one  written  code :  but  this  may  be  the  case  with  the  Muni- 
cipal Law  of  any  country,  as  it  was  till  lately  with  the  institutions  of 
every  European  nation,  and  as  it  is  now  with  those  of  Great  Britain. 

XLIII.  This  consent  is  expressed  in  two  ways : — 1.  It  is  openly  ex- 
pressed by  being  embodied  in  positive  conventions  or  treaties.  2.  It  is 
tacitly  expressed  by  long  usage,  practice,  custom, — "Jus  moribus  et 
tacito  pacto  introductum,"(Z>) — according  to  Grrotius;  or,  in  the  precise 

that  such  a  penalty  was  unjust,  or  not  supported  by  theffeneral  analogies  of  law." — 
Lord  Stowell,  The  Maria,  1  Rob.  Adm.  Rep.  90. 

"  Is  qui  jurisdctioni  praeest  ad  similia  procedere  et  ita  jus  dicere  debet." — Dig. 
1.  i.  t.  iii.  s.  12. 

"  Semper  quasi  hoc  legibus  inesse  credi  oportet,  ut  ad  eas  quoque  personas  et 
ad  eas  res  pertinerent,  quae  quandoque  similes  erunt." — Ib.  27. 

"De  quibus  causis  scriptis  legibus  non  utirnur,  id  custodiri  oportet  quod  mori- 
bus et  consuetudine  inductum  est:  et  si  qua  in  re  hoc  deficeret,  tune  quod  prox- 
imum  et  consequens  est." — Ib.  32. 

"  Si  quid  in  edicto  positum  non  inveniatur,  hoc  ad  ejus  regulas  ejusque  conjec- 
turas  et  imitationes  possit  novas  instruere  auctoritas." — Cod.  1.  i.  t.  zvii.  2,  18. 

Savigny,  R.  R.  i.  s.  46  ;  Auslegung  der  Gesetze- Analogic. 

Bowyer's  Readings,  p.  88  :  "  Analogy  is  the  instrument  of  the  progress  and 
developmeat  of  the  law."  See  some  good  observations  on  the  use  of  the  analogy 
in  the  English  Law  in  the  cases  of  Mirehouse  v.  Rennell,  8  Bingham's  Rep.  518  ; 
Bond  v.  Hopkins,  1  Schoales  and  Lefroy,  Rep.  429. 

(a)  "  Quum  enim  gentes  nulla  superiore  in  terris  contineantur,  suntillis  pro  legi- 
bus, ipsi  sibi  dixere ;  vel  scriptis  tabulis  vel  moribus  introduces,  qui  saspe  scrip- 
turis  istis  comprobrantur." — Leibnitz,  Dissertatio  11.     "  De  actorum  publicorum 
usu  atque  de  principiis  juris  natura  et  gentium,"  &c. — S.  i.  p.  310. 

"  Sed  sicut  cujusque  civitatis  jura  utilitatem  suae  civitates  respiciunt,  ita  inter 
civitates  aut  omnes,  aut  plerasque,  ex  consensu  jura  quaedam  nasci  potuerunt;  et 
nata  apparet  quae  utilitatem  respicerent  non  casterum  singulorum,  sed  magnse 
illius  universitatis.  Et  hoc  jus  est  quod  jus  gentium  dicitur,  quoties  id  nomen  a 
jure  naturali  distinguimus." — Grot.  De  J.  B.  et  P.  Prolog,  s.  17. 

(b)  Grotii  Proleg.  s.  1,  De  Jure  B.  et  P. 


70          PHILLIMORE      ON      INTERNATIONAL       LAW. 

language  of  Bynkershoek,  ''Ipsum  jus  gentium,  quod  oritur  e  pactis 
tacitis  et  prsesumptis  quse  ratio  et  usus  inducunt."(c) 
r*381  *XLIV.  Customs  and  usages  which  have  long  subsisted  be- 
L  -I  tween  nations  constitute  a  law  to  them:  "Nee  negamus,"  says 
Grotius,  "  mores  vim  pacti  accipere."(<7)  Each  State  has  a  right  to  count 
upon  the  presumption  of  their  continuance :  in  no  instance  are  they  to 
be  lightly  departed  from  by  any  single  nation;  never  without  due  notice 
conveyed  to  other  countries,  and  then  only  in  those  cases  in  which  it  may 
be  competent  to  a  nation  so  to  act. 

For  instance,  a  State  may  refuse — though  it  would  be  a  defeazance  of 
comity  bordering  upon  hostility — to  receive  the  resident  Ambassador  of 
another  State;  but  if  it  does  receive  him,  it  must  accord  to  him  the  full 
privileges  of  his  station :  they  are  secured  to  him  by  the  universal  con- 
sent of  all  nations,  which  it  is  not  competent  to  any  individual  nation  at 
her  pleasure  to  abrogate  or  deny. 

So  in  the  case  of  The  Louis,  Lord  Stowell  reversed  the  sentence  of  a 
Vice-Admiralty  Court,  which  had  condemned  a  French  ship  for  being 
employed  in  the  slave  trade,  and  resisting  the  search  of  a  British  cruiser, 
saying,  "That  neither  a  British  Act  of  Parliament,  nor  any  Commission 
founded  on  it,  can  effect  any  right  or  interest  of  foreigners,  unless  they 
are  founded  upon  principles,  and  impose  regulations  that  are  consistent 
with  the  Law  of  Nations.  That  is  the  only  Law  which  Great  Britain 
can  apply  to  them;  and  the  generality  of  any  terms  employed  in  an  Act 
of  Parliament  must  be  narrowed  in  construction  by  a  religious  adherence 
thereto."(e) 

*The  force  of  International  Custom  is  emphatically  expressed 
by  Grotius  in  the  phrase  often  repeated  by  him,  "  Placuit  genti- 
1)us;"(f}  and  still  more  in  the  phrase,  "  Christianis  in  imiversum 
placuit."{g}  Bynkershoek  speaks  of  "Ilia  perpetuo  usu  inter  diversos 
sui  juris  populos  observata  cousuetudo,"  and  repeatedly  of  the  "  Gentium 
usus"  as  one  of  the  two  pillars  of  International  Law. 

Prince  Talleyrand,  in  his  note  (19th  December,  1814),  to  the  Congress 

(c)  Qusestionum  Juris  Publici,  1.  iii.  c.  x.     Again  he  says,  "  Ut  in  omni  argu- 
mento,  quod  de  jure  gentium  est,  ratio  et  usus  faciant  utramque  paginam." — 
Ib.  c.  v. 

(d)  Lib.  ii.  c.  v.  s.  24,  p.  259.     "  It  is  my  duty  not  to  admit  that,  because  one 
nation  has  thought  proper  to  depart  from  the  common  usages  of  the  •world,  and 
to  meet  the  notice  of  mankind  in  a  new  and  unprecedented  manner,  I  am,  on  that 
account  under  the  necessity  of  acknowledging  the  efficacy  of  such  a  novel  insti- 
tution, merely  because  general  theory  might  give  it  a  degree  of  countenance, 
independent  of  all  practice,  from  the  earliest  history  of  mankind." — Flad  Oyen,  1 
Rob.  139 — 146.     See,  too,  Vattel,  ii.  1.  iv.  c.  vii.  s.  106. 

Bynkershoek,  de  Foro  de  Legatorum,  c.  v.  ad  fin.,  speaking  of  the  attempt  to 
subject  a  foreign  prince  to  a  municipal  tribunal  by  seizing  some  trifling  property 
of  his  as  it  passed  though  the  kingdom,  says,  "Nee  quicquam  magis  erit  contra 
prcesumtam  si  non  testatam  mentem  gentium." 

(e)  2  Dodson's  Admiralty  Reports,  p.  239. 

(/)  De  J.  B.  et  P.  1.  ii.  c.  xviii.  4,  s.  5 ;  1.  iii.  c.  vi.  3  ;  c.  vii.  5.  s.  2. 

(ff)  Lib.  iii.  c.  vii.  9.  s.  1.  "  Hoc  saltern  .  .  .  perfecit  reverentia  Christianas 
legis."— Ib. 

As  to  preserving  women  from  violence:  "  Atque  id  inter  Christianas  observari 
par  est  non  tantiim  ut  discipline  militaris  partem,  sed  et  ut  partem  juris  gentium." — 
Lib.  iii.  c.  v.  xix.  s.  2  ;  cf.  The  Flad  Oyen,  1  Rob.  Adm.  Rep.  141  (Lord  Stowell.) 


CUSTOM.  71 

of  Vienna,  expostulated  upon  the  violation  of  International  Law  con- 
tained in  the  arrangements  which  sanctioned  the  fresh  partition  of  Poland, 
and  the  annexation  of  parts  of  Saxony  to  Prussia.  He  said  that  such 
arrangements  would  tend  to  establish  the  principle,  "That  the  nations  of 
Europe  are  united  to  each  other  by  no  other  moral  ties  than  those  which 
unite  them  to  the  islanders  of  the  Pacific;  that  they  live  among  each 
other  under  the  pure  law  of  nature,  and  that  what  is  called  the  Public 
Law  of  Europe  does  not  exist;  since  although  all  the  civil  societies  of  the 
earth  are,  wholly  or  partially,  governed  by  usages  which  constitute  laws, 
the  customs  which  are  established  between  the  nations  of  Europe,  and 
which  they  have  universally,  constantly,  and  reciprocally  observed  for 
three  centuries,  do  not  form  a  law  for  them;  in  one  word,  that  there  is 
no  other  law  but  that  of  force. "(7i) 

XLV.  Lord  Stowell  frequently  expressed  his  entire  concurrence  with 
the  opinions  of  preceding  jurists  as  to  the  great  and  inestimable  influence 
of  Custom  upon  the  Rights  and  Duties  of  Nations.  Speaking  of  the 
condemnation  of  a  ship  in  a  neutral  country,  he  says:  "It  has  been  con- 
tended that  such  a  sentence  is  perfectly  legal,  both  on  *principle 
and  authority.  It  is  said  that,  on  principle,  the  security  and 
consummation  of  the  capture  is  as  complete  in  a  neutral  port  as  in  the 
port  of  the  belligerent  himself.  On  the  mere  principle  of  security  it 
may  perhaps  be  so;  but  it  is  to  be  remembered  that  this  is  a  matter  not 
to  be  governed  by  abstract  principles  alone;  the  use  and  practice  of  nations 
have  intervened,  and  shifted  the  matter  from  its  foundations  of  that 
species:  the  expression  which  Grotius  uses  on  these  occasions  (Placuit 
gentibus)  is,  in  my  opinion,  perfectly  correct,  intimating  that  there  is  a 
use  and  practice  of  nations,  to  which  we  are  now  expected  to  con- 
form."^') 

In  another  case,^')  he  says:  "This  is  a  position  in  which  I  am  justi- 
fied by  the  general  practice  of  mankind,  and  the  practice  of  mankind 
forms  one  great  branch  of  the  law  of  nations."  Throughout  his  cele- 
brated judgment  in  The  Maria(A;)  he  relies  invariably  upon  "the  law 
and  practice  of  nations."  And  again,  in  The  Santa  Cruz,  after  having 
observed  that  there  is  no  statute  of  the  British  Parliament  upon  the  sub- 
ject of  Prize  which  directly  applies  to  recapture,  he  continues :  "But 
there  is  a  law  of  habit,  a  law  of  usage,  a  standing  and  known  principle, 
on  the  subject  in  all  civilized  and  commercial  counties :  it  is  the  common 
practice  of  European  States  in  every  war  to  issue  proclamations  and 
edicts  on  the  subject  of  Prize;  but  till  they  appear,  Courts  of  Admiralty 
have  a  law  and  a  usage  on  which  they  proceed,  from  habit  and  ancient 
practice,  as  regularly  as  they  afterwards  conform  to  the  express  regula- 
tions of  their  prize  acts."(?) 

(h)  Wheaton's  History  of  the  La~w  of  Nations,  p.  429. 
Kliiber,  Acten  des  Wiener  Congresses,  Band.  vii.  s.  48. 
(i)  The  Henrick  and  Maria,  4  Rob.  Adm.  Rep.  pp.  54,  55. 

/)  The  Progress,  7  Rob.  Adm.  Rep.  220. 

k)  1  Robinson's  Adm.  Rep.  350.  362,  &c.     See,  too,  Flad  Oyen,  Ib.  140,  141. 

I)  1  Robinson's  Adm.  Rep.  p.  61. 
The  Mercurius,  1  Rob.  Adm.  Rep.  p.  82  :  "Under  the  modern  law  of  nations." 


72  PIIILLIMORE     ON     INTERNATIONAL    LAW. 

Similar  expressions  abound  in  the  luminous  expositions  of  International 
Law  which  these  judgments  afford. 

rt ...  ^  *XLVI.  The  Law  of  Nations  has  received  continual  acces- 
-I  sions  and  improvements  since  the  first  cultivation  of  it  in  the 
Christian  world ;  not  only  have  evil  customs  been  abrogated,  but  the 
rigour  of  many  ancient  customs  has  been  softened  and  relaxed  in  their 
application,  without  any  departure  from  the  principle  on  which  they 
were  founded.  This  effect  is  happily  described  by  Lord  Stowell ;  when 
speaking  of  contraband  articles  found  on  board  a  neutral  vessel,  he  says, 
"  I  do  not  know  that,  under  the  present  practice  of  the  Law  of  Nations, 
a  contraband  cargo  can  effect  the  ship.  By  the  ancient  law  of 
Europe,  such  a  consequence  would  have  ensued;  nor  can  it  be  said 
that  such  a  penalty  was  unjust,  or  not  supported  by  the  general  analo- 
gies of  law,  for  the  owner  of  the  ship  has  engaged  it  in  an  unlawful 
commerce.  But  in  the  modern  practice  of  the  Courts  of  Admiralty  of 
this  country,  and  I  believe  of  other  nations  also,  a  milder  rule  has 
been  adopted."  (m)  On  the  other  hand,  usage  has  decided  that  many 
things  are  contraband  in  naval  war  concerning  which  there  had  formerly 
been  much  dispute.  Valin  says  honestly  and  boldly  in  his  Commentaries, 
"  De  droit  ces  choses  sont  de  contrabande  aujourd'hui  et  depuis  le  com- 
mencement de  ce  siecle,  ce  qui  n'etait  pas  autrefois  neanmoins."(«)  There 
must  be,  however,  a  reciprocity(o)  in  the  conduct  of  the  nation  demand- 
ing from  another  nation  the  privilege  of  these  mitigations  introduced  by 
usage  into  the  ancient  Law ;  and  a  nation  may  be  estopped  by  its  usage 
from  claiming  the  benefit  of  a  principle  of  the  Law  of  Nations  which 
would  operate  in  its  favour. 

XLVII.  Such  is  the  influence  of  universal  usage,  that  it  will  in  some 
measure  affect  even  the  stipulations  of  a  treaty  made  long  prior  to  the 
commencement  of  that  usage,  and  at  a  time  when  the  law  which  has 
been  since  settled,  was  in  a  state  of  fluctuation  and  controversy. (p) 
r  *<19  T  *^a  1654,  a  treaty  was  entered  into  between  England  and 
L  J  Portugal,  by  which,  among  other  things,  both  countries  mutu- 
ally bound  themselves  not  to  suffer  the  ships  and  goods  of  the  other 
taken  by  enemies,  and  carried  into  the  ports  of  the  other,  to  be  con- 
veyed away  from  the  original  owners  or  proprietors.  "  Now,  I  have  no 
scruple  in  saying"  (observes  Lord  Stowell,  in  1798,)  «  that  this  is  an 
Article  incapable  of  being  carried  into  literal  execution,  according  to 
the  modern  understanding  of  the  Law  of  Nations,  for  no  neutral  coun- 
try can  interpose  to  wrest  from  a  belligerent  prizes  lawfully  taken. "(5) 
This  is  perhaps  the,  strongest  instance  that  could  be  cited,  of  what  civi- 
lians call  the  "  consuetudo  obrogatoria."  (r) 

The  Maria,  Ib.  371,  a:  "According  to  the  modern  understanding  of  the  law  of 
nations." 

The  Santa  Cruz,  1  Rob.  Adm.  Rep.  p.  65  ;  The  Elsebe,  4  Ib.  p.  421. 

(m)  The  Ringende  Jacob,  1  Rob.  Adm.  Rep.  p.  90. 

(n)  Ordonnance  de  la  Marine,  1.  iii.  t.  ix.  art.  xi. 

(o)  The  Santa  Cruz,  1  Rob.  Adm.  Rep.  pp.  49,  64. 

(p)  The  Maria,  1  Rob.  Adrn.  Rep.  pp.  371—373. 

(q)  The  Santa  Cruz,  1  Rob.  Adm.  Rep.  pp.  49,  64.  See  also  vol.  ii.  p.  732,  of 
Sir  Leoline  Jenkins's  Works. 

(r)  Savigny,  System  des  ROmischen  Rechts,  b.  i.  195. 

Bynkershoek,  do  Foro  Legat.  c.  xix.  s.  7. 


HISTORY.  73 

XLVIII.  So  the  establishment  of  the  Courts  of  the  Law  of  Nations 
in  all  civilized  countries  in  time  of  war,  is  an  institution  introduced  by 
civilized  usage,  and  binding  upon  all  civilized  countries. 

Neutral  Nations  in  time  of  "War  have  now  no  right, (s)  when  they  are 
injured,  to  exact  compensation  from  the  countrymen  of  the  aggressors, (z) 
though  the  Barbary  States  are  said  by  Lord  Stowell  to  do  so,"  under  a 
Law  of  Nations  "  now  peculiar  to  themselves."(M)  Neither  in  time  of 
Peace  are  Nations  entitled  to  have  recourse  to  Reprisals,  until  reparation 
for  the  injury  sustained  has  been  formally  asked  and  denied,  both  of  the 
proper  tribunal,  and  of  the  government,  in  re  minime  dubid. 

These  points,  however,  will  receive  a  fuller  discussion  in  another  part 
of  this  work. 


*CH  AFTER   VI.  [  *43  ] 

HISTORY. 

XLIX.  Such  being  the  influence  of  usage  upon  International  Law, (a) 
it  becomes  of  importance  to  ascertain  where  the  repositories,  and  what 
the  evidence  may  be  of  this  great  source  of  International  Law. 

L.  (1.)  In  the  enumeration  of  these,  History,  unless  the  term  be  too 
general,  necessarily  takes  the  first  place.  It  supplies,  according  to  Gro- 
tius,  both  example  and  authoritative  judgments — of  which  the  latter  owe 
their  weight  to  the  general  acceptance  which  they  have  obtained,  whilst 
the  former  are  more  or  less  valuable  according  as  they  are  more  or  less 
derived  from  epochs  and  Nations  more  or  less  entitled  to  universal 
respect.(i) 

It  is  scarcely  necessary  to  guard  against  the  error  which  Grotius,  in 
another  part  of  his  work  denounces — that  instances  recorded  in  History, 
merely  by  virtue  of  being  so  recorded,  constitute  precedents  of  Inter- 
national Law.(c) 

(*)  Bynkershoek,  Observations  Juris  Romani,  c.  ii.  vol.  ii. :  "  Propulsatio  vis 
atque  injuriaa  quo  sensu  juri  gentium  tribuatur." 

(t)  The  Maria,  1  Rob.  Adm.  Rep.  p.  373;  The  Walsingham  Packet,  Ib.  p.  83  ; 
The  Snipe  and  others,  Edwards's  Adm.  Rep.  p.  412. 

(u)  The  Kinder  Kinder,  2  Rob.  Adm.  Rep.  p.  88. 

(a)  "  Quamquam  enim  nee  sit  exemplis  judicandum,  et  aureaea  dicitur  Justini- 
ani  lex,  ab  exemplis  tamen  duci  probabilem  conjecturam  certum  est,  et  in  dubio 
judicandum  imo  est  exemplis ;  et  cum  itum  in  consuetudinem  est.  Neque  enim  mu- 
tare  decet  quaa  certam  observantiam  semper  habuerunt,  et firmius  j  udicium  creditur. 
quod  pluriinorum  sententiis  confirmatur." — Albericus  Gentilis,  lib.  i.  c.  ii.  De  Jure 
Belli. 

(6)  Grot.  Proleg.  s.  xlvi.:  "Historise  duplicem  habent  usum  qui  nostri  sit  argu- 
ment!:  nam  et  exempla  suppeditant  et  jndicia.  Exempla  quo  meliorum  sunt  tem- 
porum  et  populorum  eo  plus  habent  auctoritatis ;  ideo  Graeca  et  Romana  vetera 
cajteris  praetulimus.  Nee  spernenda  judicia  prsesertim  consentientia ;  jus  enim 
naturae  ut  diximus,  aliquo  modo  inde  probatur;  jus  vero  gentium  non  est  at  aliter 
probetur." 

The  Flad  Oyen,  1  Rob.  Adm.  Rep.  p.  141. 

(c)  "  Solet  et  illud^quseri  an  jure  talionis  interfici,  aut  male  tractari  legatus  pos- 
sit  ab  eo  veniens,  qui  tale  quid  perpetravit.  Et  sunt  quidem  ultionis  talis  exempla 
in  historiis  satis  multa:  sed  minirum  histories  non  tanturn  quae  juste,  sed  et  quae 
inique,  iracunde,  impotenter  facta  sunt  memorant." — Grot.  1.  ii.  c.  xviii.  7. 

JULY,  1854.— 6 


74  PHILLIMORE    ON    INTERNATIONAL    LAW. 

History  is  a  record  of  the  injustice,  evil  passions,  and  folly,  as  well  as 
of  the  justice,  virtues,  and  \visdom  of  Nations. 

r*in  *The  necessities  of  the  epoch  in  which  Grotius  wrote,  left 
J  him  little  or  no  choice  in  selecting  his  examples  and  precedents 
chiefly  from  the  antiquity  of  Greece  and  Rome.  This  is  not  the  case 
with  his  successors ;  they  have  far  ampler  and  far  apter  materials.  But 
the  edifice  is  not  the  weaker  for  the  breadth  and  depth  of  the  classical 
foundations  laid  by  the  first  architect;  and  the  principle  which  guided  him 
is  in  this,  as  in  mpst  other  instances,  most  valuable  to  the  latter  and,  in 
spite  of  their  advantages,  inferior  builders. 

LI.  (2.)  Secondly,  the  consent  of  Nations  is  evidenced  by  the  con- 
tents of  Treaties,  which  for  this,  as  well  as  for  other  reasons,  constitute 
a  most  important  part  of  International  Law.(d) 

LII.  Upon  this  point  there  is  one  observation  which  merits,  from  its 
importance,  precedence  over  all  others.  It  is  this  :  No  treaty  between 
two  or  more  Nations  can  affect  the  general  principles  of  International 
Law  prejudicially  to  the  interest  of  other  Nations  not  parties  to  such 
covenant;  at  the  same  time,  the  contracting  parties(e)  may  introduce  into 
a  treaty  expressions  so  generally  worded  as  to  be  either  explanatory  of 
a  previously  contested  point  of  law,  or  declaratory  of  the  future  inter- 
pretation of  it,  or  in  other  ways  frame  the  covenants  of  the  Treaty 
between  themselves  so  as  to  lay  down  an  universal  principle  binding  on 
them,  at  least,  in  their  intercourse  with  the  rest  of  the  world.  Nowhere 
r  .  r -,  will  this  important  doctrine  be  found  laid  down  with  greater 
L  J  *precision,  or  more  irresistible  argument,  than  in  Lord  Gren- 
ville's  speech  in  the  House  of  Peers,  upon  the  motion  for  an  address  to 
the  throne  approving  of  the  convention  with  Russia  in  1801. (/) 
Among  the  many  attributes  of  a  statesman  possessed  in  rare  excellence 
by  that  minister,  was  his  intimate  acquaintance  with  International  Juris- 
prudence in  all  its  branches.  His  opinion  is,  therefore,  of  very  great 
authority.  He  argued  that,  by  the  language  of  that  convention,  a  new 
sense,  and  one  hitherto  repudiated  by  Great  Britain,  with  respect  to  con- 
traband of  war  would  be  introduced,  so  far  at  least  as  Great  Britain 
was  concerned,  into  general  International  Law ;  that  inasmuch  as  some 
provisions  of  the  Treaty  with  respect  to  what  should  be  considered  con- 
traband of  war  were  merely  prospective,  and  confined  to  the  contracting 

(d)  "All  this  body  of  old  conventions,  composing  the  vast  and  voluminous  col- 
lection called  the  Corps  Diplomatique,  forms  the  code  or  statute  law,  as  the  metho- 
dized reasonings  of  the  great  publicists  and  jurists  form  the  digest  and  jurispru- 
dence of  the  Christian  world.     In  these  treasures  are  to  be  found  the  usual  rela- 
tions of  peace  and  amity  in  civilized  Europe." — Letters  on  a  Regicide   Peace, 
Burke's  Works,  ix.  235. 

(e)  "  Usus  intelligitur  ex  perpetua,  quodam  modo,  paciscendi  edicendique  con- 
suetudine  ;  pactis  enim  principes  ssepe  id  egerunt  in  casum  belli,  sfepe  etiam  eclic- 
tis  contra  quoscunque,  flagrante  bello.     Dixi,  ex  perpetua  quodam  modo  consuetudine, 
quia  unum  forte  alterumve  pactum,  quod  a  consuetudine  recedit,  jus  gentium  non 
mutat." — Bynkershoek,  Quaestionum  Juris  Publici,  1.  i.  c.  x. 

Wheaton's  El.  of  Int.  Law,  i.  60. 

(/)  This  speech  was  published  separately,  by  Cobbett  and  Morgan,  Pall  Mall, 
November  13,  1802. 
See  too,  Hansard's  Parliamentary  Debates — 1801. 


TREATIES.  75 

parties,  England  and  Russia,  while  other  provisions  of  the  same  Treaty 
were  so  couched  in  the  preamble,  the  body,  and  certain  sections  which 
contained  them,  as  to  set  forth,  not  the  concession  of  a  special  privilege 
to  be  enjoyed  by  the  contracting  parties  only,  but  a  recognition  of  one 
universal  pre-existing  right,  they  must  be  taken  as  laying  down  a  gene- 
ral rule  for  all  future  discussion  with  any  Power  whatever,  and  as  esta- 
blishing a  principle  of  law  which  was  to  decide  universally  on  the  just 
interpretation  of  the  technical  term  contraband  of  war.(g\ 

LIII.  The  constant  consent  of  various  nations  to  adopt  a  particular 
interpretation  of  a  particular  term  is,  generally  speaking,  strong  evidence 
that  such  is  the  true  International  meaning  belonging  to  it.  Bynkershoek 
was  in  the  habit  of  placing  great  stress  upon  the  language  of  Treaties, 
as  evidence  of  the  universal  consent  of  nations,  and  especially  on  this 
point  :(A)  "  Excute  pacta  gentium,  quse  diximus,  excute  et  alia,  quse  alibi 
exstant,  et  reperies,  omni  ailla  appellari  *contral>anda,  quae,  uti 
hostibus  suggeruntur,  bellis  gerendis  inserviunt,  sive  instrumenta 
bellica  sint,  sive  materia,  per  se  bello  apta;"  and,  again,  "Priusquam 
autem,  quid  mihi  videatur,  exponam,  operae  pretium  erit,  pactiones  gen- 
tium consuluisse;"  again,  "Sed  his  paulisper  sepositis  audi  pacta  gen- 
tium;"— these  and  the  like  expressions  abound  in  his  most  valuable 
dissertations.  Nor  in  this  respect  is  he  at  variance  with  other  jurists; 
it  is  their  universal  opinion  that  the  general  spirit,  as  well  as  the  par- 
ticular provisions,  of  Treaties  to  which  at  different  periods  many  nations 
have  been  parties,  is  of  great  moment  and  account  as  the  evidence  of 
their  consent  to  the  doctrine  contained  in  them.  So  Lord  Stowell,  in  his 
judgment  of  The  Maria,  arguing  for  the  universal  right  of  the  belligerent 
to  visit  neutral  merchant  ships,  says:  "The  right  is  equally  clear  in 
practice,  for  practice  is  uniform  and  universal  upon  the  subject:  the 
many  European  Treaties  which  refer  to  this  right  refer  to  it  as  pre-exist- 
ing,  and  merely  regulate  the  exercise  of  it. "(4) 

So  the  "Reponse  sans  replique,"  already  mentioned,  of  Great  Britain 
to  the  Prussian  memorial,  and  that  memorial  itself,  refer  to  a  variety  of 
Treaties  as  containing  provisions  illustrative  and  confirmatory  of  the  doc- 
trine maintained  in  the  reply. 

LIV.  When,  however,  it  is  said  that  the  consent  of  nations  may  be 
gathered  in  some  degree  from  the  conventions  of  Treaties,  it  is  not  meant 
that  every  kind  of  Treaty  can  furnish  even  this  degree  of  evidence.  Many 
are  concerned  with  matters  of  no  generality  interest  to  other  than  the 

(g}  See  Appendix  for  the  extract  at  length  from  the  speech  upon  this  point. 

(A)  Quaestionum  Juris  Publici,  1.  i.  c.  x.  113. 

(z)  1  Robinson's  Adm.  Rep.  p.  360. 

(k)  "  By  this  means  the  proposed  fraternity  is  hustled  in  the  crowd  of  those 
treaties  which  imply  no  change  in  the  public  law  of  Europe,  and  which  do  not, 
upon  system,  affect  the  interior  condition  of  nations.  It  is  confounded  with  those 
conventions  in  which  matters  of  dispute  among  sovereign  powers  are  compromised, 
by  the  taking  off  a  duty  more  or  less,  by  the  surrender  of  a  frontier  town  or  a  dis- 
puted district  on  the  one  side  or  the  other,  by  pactions  in  which  the  pretensions 
of  families  are  settled  (as  by  a  conveyancer  making  family  substitutions  and  suc- 
cessions), without  any  alterations  in  the  laws,  manners,  religion,  privileges,  and 
customs  of  the  cities  or  territories  which  are  the  subject  of  such  arrangements." — 
Burke,  viii.  234,  Letters  on  a  Regicide  Peace. 


70  PHILLIMORE    ON     INTERNATIONAL    LAW. 

r*4-71  *contracting  parties;  many  contain  stipulations  wrung  from  the 
•J  necessities  of  one  party,  and  compelled  to  admit  claims  to  which 
by  the  general  law  its  adversary  was  not  entitled. (?)  From  Treaties  of 
this  description  no  argument  of  the  consent  of  Nations  can  be  fairly  de- 
duced. But  there  are  certain  great  and  cardinal  Treaties  in  which,  after 
long  and  bloody  wars,  a  re-adjustment  of  International  relations  has  taken 
place,  and  which  are  therefore  more  especially  valuable,  both  from  the 
magnitude  and  importance  of  their  provisions,  which  have  necessitated  a 
recurrence  to,  and  a  re-statement  of,  the  fundamental  principles  of  Inter- 
national Law;  and  also  from  the  fact,  that  frequently  the  greater  number 
of  European  States,  and  lately  some  American  and  even  Asiatic  conimu- 
nities,  have  been  parties  thereto. (w) 

This  subject  will  come  again  under  discussion  in  a  subsequent  chapter 
upon  Treaties.  It  may,  however,  be  as  well  to  mention  in  this  place 
that  the  Treaties  which  have  principally  affected  International  Law, 
are:  (») — 

r  *4R  "1        *^or  -^ur°Pe  generally : — Westphalia,  (1648,)  to  which  every 
-I  Sovereign  and  State  on  the  Continent  of  Europe,  except  the  Pope 
and  the  Grand  Seignor,  was  a  party;  Utrecht,  (1713;)  Paris  and  Hu- 
bertsbourg,  (17G3;)  Paris,  (1814,)  and  the  Congress  of  Vienna. 

The  principal  Treaties  between  the  United  States  of  North  America 
and  the  European  powers  are : — 

The  Treaty  of  Versailles,  (1783,)  containing  the  recognition  of  this 
Republic. 

The  Treaty  of  Ghent,  (December,  1814,)  between  Great  Britain  and 
the  United  States,  chiefly  as  to  boundaries  of  their  respective  dominions 
in  North  America. 

(1)  "  Quod  vero  conta  rationem  juris  receptum  est,  non  est  producendum  ad  con- 
sequentias." — Dig.  i.  iii.  s.  14  (De  Legibus). 

"Quse  propter  necessitatem  recepta  sunt,  non  debent  in  argumentum  trahi." — 
Dig.  1.  xvii.  162  ;  de  Diversis  Regulis  Juris  Antiqui. 

(m)  Tous  les  princes  et  etats  de  PEurope  se  trouvent  ainisi  directement  ou  indi- 
rectemcnt  compris  dans  ce  traite,  a  1'exception  du  Pape  et  du  Grand  Seigneur  qui 
seuls  n'y  prisent  aucune  part." — Koch.  Hist,  de  Tr.  c.  i.  1,  3,  in  fine. 

(n)  "  Si  Ton  examine  les  revolutions  qui  ont  contribute"  Ji  constituer  l'6tat  actuel 
de  1'Europe,  on  se  convaincra  qu'il  y  a  peu  de  traite"s  anterieurs  a  ceux  de  Westphalie, 
d'Oliva,  et  de  Carlowitz,  dont  1'influence  s'6tende  aux  affaires  g6ne"rales,  et  au  sys- 
teme  politique  de  nos  jours.  L'e'tude  des  traite's  qui  les  precedent  ne  laisse  cepen- 
dant  pas  d'avoir  son  utilite",  parce  que  les  stipulations  qu'ils  renferment  son  sou- 
vent  rappelees  et  confirmees  dans  des  actes  plus  r6cents;  que  les  preventions  des 
puissances  derivent  en  grande  partie  des  anciens  traite's,  et  qu'enfin  la  connaissance 
de  ceux-ci  sert  a  etendre  les  vues  de  la  politique ;  car  plus  on  p6ne"tre  dans  1'histoire 
des  traite's,  plus  on  se  rend  propre  aux  negotiations  et  aux  travaux  diplomatiques. 

"  II  serait  superflu  d'entrer  dans  un  plus  grand  detail  sur  les  avantages  que  pro- 
cure la  connaissance  des  traite's ;  il  suffit  de  remarquer  qu'elle  donne  celle  de  1'dtat 
actuel  de  1'Europe,  ainsi  que  des  droits  et  des  obligations  r6ciproques  des  puissances. 
Elle  est  done  indispensable  a  tous  ceux  qui  sont  charge's  du  maniement  des  affaires 
publiques  on  qui  veulent  s'y  former.  Elle  n'est  pas  d'une  moindre  utilite  ti  ceux 
qui  etudient  1'histoire  en  philosophes  et  en  politiques. 

"  En  suivant  le  fil  des  negociations,  on  decouvre  1'origine  des  evenements  qui 
ont  change"  la  face  du  monde  politique,  et  produit  1'etat  de  choses  qui  r6gne  au- 
jourd'hui  en  Europe.  Cette  etude  conduit  done  alavraie  connaissance  de  1'histoire, 
et  nous  met  en  e"tat  de  relever  beaucoup  d'erreurs  commises  par  les  historiens  qui 
ont  neglig6  d'approfondir  les  traites." — Koch.  Hist,  des  Tr.  Pref. 


TREATIES.  77 

The  Treaty  between  the  United  States  of  North  America  with  the 
Confederation  of  Central  America,  (December  4,  1845.) 

The  Treaty  which  established  the  kingdom  of  Belgium,  (1839.) 

A  group  of  Treaties  negotiated  for  the  North  of  Europe  only : — Oliva, 
(1660;)  Kiel,  (1814,)  with  the  Ottoman  Porte;  Carlowitz,  (1699;)  Bu- 
charest, (1812.) 

The  Treaties  which  have  affected  the  relations  between  the  Ottoman 
Porte  and  the  European  Powers  generally : — 

The  Act  of  the  Porte  granting  to  British  merchant  vessels  the  privi- 
leges of  commerce  in  the  Black  Sea,  (October  30,  1799.) 

The  Treaty  which  established  the  kingdom  of  Greece,  (1832.) 

The  Convention  concluded  between  the  Courts  of  Great  Brjitain, 
Austria,  Prussia,  and  Russia,  and  the  Sublime  Ottoman  Porte,  for  the 
pacification  of  the  Levant,  signed  at  London,  July  15,  1840. 

The  Treaty  of  July  13,  1841,  as  to  the  Navigation   of  *the  r  ^Q  -, 
Dardanelles  and  the  Bosphorus,  which  incorporated  into  the  writ-  "- 
ten  Law  of  Nations  the  conventional  maxim  as  to  territorial  jurisdiction 
over  adjacent  waters. 

The  Treaty  between  Russia  and  Persia,  signed  at  Seiwa  (1813),  and 
confirmed  at  Teflis,  under  the  mediation  of  Great  Britain,  in  which  Persia 
recognized  the  exclusive  right  of  Russia  to  have  ships  of  war  in  the  Cas- 
pian sea. 

The  Treaty  between  Great  Britain  and  Persia,  signed  at  Tehran,  No- 
vember 25th,  1814,  followed  by  the  royal  order  of  the  Schah  relative  to 
the  trade  of  British  subjects  in  Persia. 

LV.  These  Treaties  furnish  one  of  the  many  reasons  why  the  science 
of  International  Law  has  made  such  progress  since  the  Treaty  of  West- 
phalia, which  is  usually  considered  as  the  first  great  adjustment  of  Inter- 
national Relations  on  the  Continent  of  Europe.  It  is,  then,  a  sound 
maxim  that  a  principle  of  International  Law  acquires  additional  force 
from  having  been  solemnly  acknowledged  as  such  in  the  provisions  of  a 
Public  Treaty.(o) 

LVI.  How  far  a  provision  of  a  treaty  may  be  affected  by  its  omission 
in  a  subsequent  treaty  between  the  same  powers  is  a  question  of  much' 
gravity.  When  the  independence  of  the  United  States  of  North  America 
was  acknowledged,  the  right  of  navigating  the  Mississippi  was  secured  to 
the  subjects  of  Great  Britain  as  well  as  those  of  the  United  States  by  a 
treaty  (1783)  between  these  two  powers  :  but  in  the  Treaty  of  Ghent 
(1814),  which  put  an  end  to  the  war  between  these  powers  which  had 
broken  out  in  1812,  the  stipulation  of  1783  in  favour  of  British  subjects 
was  not  renewed,  and  it  is  now  contended  by  the  United  States  that  the 
right  belongs  exclusively  to  their  own  subjects.^) 

When  a  treaty,  dealing  with  certain  subjects,  is  silent  as  to  others 
naturally  connected  with  them,  or  leaves  them  on  an  indefinite  and  dis- 
putable footing,  questions  afterwards  *arising  upon  subjects  of  r  #t,~  -, 
this  latter  class  will  then  be  decided  according  to  the  subsequent  L 

(o)  For  a  list  of  Treaties  relating  to  the  opening  of  ports  usually  closed lo  foreign- 
ers— rclache  forcee — see  Appendix. 
(p)  Wheaton's  Hist.  507,  508,  585. 


78  PHILLIMORE    ON    INTERNATIONAL    LAW. 

judgment  and  practice  of  nations,  which  must  bo  looked  to  for  exposition 
of  these  subjects;  and  when  in  a  treaty  an  enumeration  is  made  of  par- 
ticular articles,  or  particular  matters,  according  to  the  nature  of  the 
treaty,  this  is  held  to  be  done  in  order  to  prevent  misunderstanding,  and 
not  to  warrant  the  inference,  that  the  articles  or  matters  excepted  from 
the  enumeration  should  be  considered  as  tacitly  sanctioned  thereby  :  the 
rule  "  Exceptio  confirmat  regulam "  is  not  applicable  to  cases  of  this 
description. (5) 

LVII.  The  consent  of  Nations  is  also  evidenced  by  the  Proclamations 
or  Manifestoes(r)  issued  by  the  governments  of  States  to  .the  subjects  of 
them  upon  the  breaking  out  of  war.  These  frequently  contain,  not  only 
expositions  of  the  causes  which  have  led  to  this  result,  but  also  a  de- 
fence of  the  government,  founded  upon  a  reference  to  the  principles  of 
International  Law,  in  declaring  an  offensive  or  undertaking  a  defensive 
war. 

These  public  documents  furnish,  at  all  events,  decisive  evidence(s) 
jagainst  any  state  which  afterwards  departs  from  the  principles  which  it 
has  thus  deliberately  and  solemnly  invoked ;  and  in  every  case  they 
clearly  recognize  the  fact,  that  a  system  of  law  exists  which  ought  to 
regulate  and  control  the  international  relations  of  every  state. 

LVIII.  The  Marine  Ordinances  or  regulations  of  a  State  afford  valu- 
able testimony,  first,  as  to  the  practice  of  the  State  itself  upon  this 
branch  of  International  Law ;  and  also,  in  some  degree,  as  to  the  usage 
r  *^i  n  °^  Cations  as  generally  recognized  *at  that  time  by  the  jurists 
-I  and  statesmen,  the  legislative  assemblies  of  the  country  which 
issued  them.0 

When  the  institutes  of  great  maritime  countries  agree  upon  a  question 
of  International  Maritime  Law,  they  constitute  a  tribunal  from  which 
there  can  rarely,  if  ever,  be  any  appeal. 

Certain  of  these  institutes,  independently  of  their  agreement  or  dis- 
agreement with  other  maritime  codes,  have  always  been  held  in  the 
highest  respect;  and  certainly  no  English  writer  or  judge  can  be  accused 
of  national  partiality  for  relying  upon  them.(«)  These  are  the  cele- 

(q]  The  Ringende  Jacob,  1  Rob.  Adm.  Rep.  p.  92  (Lord  Stowell). 

(?•)  The  Santa  Cruz,  1  Rob.  Adm.  Rep.  61. 

(s)  The  remarks  which  ./Eschines  so  forcibly  urges  as  to  the  advantage  of  public 
records,  and  the  testimony  they  bear  to  the  character  of  public  men,  is  equally  ap- 
plicable to  States:  "KaXoi/,  c5  avfpes  'AOrivaioi,  xa\dv  q  rail'  6rifioaiwv  ypafi^druv  0i)XaK»j  ' 
dKivrjTOv  yap  £<m  *rai  oil  <ru;<//£ra7ri7rr£(  roTj  duro^oXouo-iv  iv  TTJ  TroAirsfo  dXX'  i-rriSwKE  TM  Sij/jfJ, 
inrdrav  PovXtjrai,  o-vviStiv  roiis  TraXai  jilv  Trovrjpovs,  tic  |j£ra/?oXf)£  <5'  djiouiraj  eivai  xpTjoro'Cj." 

— JSschin.  Orat.  Adv.  Ctesiph.  s.  75. 

(t)  Wheaton  states  the  proposition  in  a  less  limited  shape. — Elements  of  Intern. 
Law,  p.  101. 

See  The  Maria,  passim,  especially  p.  368,  1  Rob.  Adm.  Rep. ;  The  Hoop,  1  Rob. 
Adm.  Rep.  pp.  198,  199. 

(u)  The  Maria,  passim. 

Oppenheim,  System  des  Volkerrechts,  kap.  v.  s.  8. 

"  The  venerable  authority  of  the  Consolato." — Lord  Stowell,  5  Rob.  Adm.  Rep. 
p.  4,  Henrick  and  Maria. 

"II  Consolato  del  Mare,  cap.  273,  expressly  says,  'The  enemy's  goods  found  on 
board  a  friend's  ship  shall  be  confiscated  ;'  and  this  is  a  book  of  great  authority." — 
The  Duke  of  Newcastle's  Letters  to  M.  Michel,  note  to  first  Proposition,  p.  64. 


TREATIES.  79 

brated  "  Consolato  del  Mare,"  with  the  commentary  of  Casaregis,  and 
the  French  Ordonnance  sur  la  Marine  of  1681,  with  the  commentary  of 
Yalin ;  and,  due  regard  being  had  to  the  modern  practice,  the  "  Collec- 
tion des  Lois  Maritimes  Anterieures  au  XVIII.e  Siecle,"  by  Pardessus. 

LIX.  The  consent  of  Nations  is  also  evidenced  by  the  decisions  of 
Prize  Courts,  and  of  the  tribunals  of  International  Law  sitting  in  each 
country. 

It  has  been  already  observed,  that  in  time  of  war;  neu 
a  right  to  demand  ex  debito  justiticefx)  that  there  be 
administration  of  International  Law  sitting  in  the  be 
tries,  (y] 

*The  duties  of  those  courts  are  faithfully  described  1 
Stowell,  in  the  case  of  the  Swedish  Convoy  :(z)  <«  In  forn  c 
judgment,  I  trust  that  it  has  not  for  a  moment  escaped 
collection  what  it  is  that  the  duty  of  my  station  calh   f 
namely,  not  to  deliver  occasional  and  shifting  opinions  t 
purposes  of  particular  national  interest,  but  to  administer  A  i 
that  justice  which  the  Law  of  Nations  holds  out,  withou 
independent  states,  some  happening  to  be  neutral,  and  sr 
the  seat  of  judicial  authority  is  indeed  locally  here,  in 
country,  according  to  the  known  law  and  practice  of  nati 
itself  has  no  locality.     It  is  the  duty  of  the  person  wh( 
termine  this  question  exactly  as  he  would  determine  the  ; 
sitting  at  Stockholm ;  to  assert  no  pretensions  on  tlu 
Britain  which  he  would  not  allow  to  Sweden  in  the  sam< 
and  to  impose  no  duties  on  Sweden,  as  a  neutral  country,        ch  he  would 
not  admit  to  belong  to  Great  Britain  in  the  same  charact 

In  another  case,(a)  he  says:   "It  is  to  be  recollected 
Court  of  the  Law  of  Nations,  though  sitting  here  under 
the  king  of  Great  Britain.     It  belongs  to  other  nations  : 
own  ;  and  what  foreigners  have  a  right  to  demand  from  i 
tration  of  the  Law  of  Nations  simply,  and  exclusively  of  the  ; 
of  principles  borrowed  from  our  own  municipal  jurispr 
it  is  well  known  they  have  at  all  times  expressed  no  incc 
tance." 

It  cannot  be  denied  that  this  theory  of  judicial  duty  breat 
spirit  of  pure  and  impartial  justice.     It  is  to  be  remen;'  •,  that 

the  simple  enunciation  of  such  a  theory  is,  to  a  certain  extent,  a  g 
tee  for  a  corresponding  practice  on  the  part  of  the  natio  i  [-reclaim: 
It  holds  up  the  severest  standard  by  which  to  measure  *the  i 
cisions  of  the  court  j  and  it  witnesses  beforehand,  as  it  wer 
against  any  deviation  from  the  path  of  duty  thus  emp  .'•. 
out. 

The  remark  of  Mr.  Wheaton  upon  this  theory,  expounded,  he  admits, 

(x)  The  Snipe  and  others,  Edwards'  Adm.  Rep. ;  also  published  separately. 
(y)  See  important  remarks  of  Mably,  Droit  Public,  vol.  iii.  pp.  350,  351 ;  and 
Wheaton,  Hist.  p.  171,  note. 

(z]  The  Maria,  1  Robinson,  p.  350. 

(a)  The  Recovery,  6  Dodson's  Adm.  Rep.  p.  349. 


80  PHILLIMORE    ON    INTERNATIONAL    LAW. 

by  "  one  of  the  greatest  of  maritime  judges,"  is,  that  those  whose 
interests  are  affected  by  those  adjudications  will  always  doubt  whether 
the  practice  corresponds  with  the  theory — especially  in  the  case  of  a 
great  maritime  country,  whose  judge  must,  he  thinks,  unconsciously  feel 
the  national  bias  in  favour  of  whatever  operates  to  the  encouragement  of 
the  national  navy.  These  judgments,  however,  he  says,  if  the  principles 
upon  which  they  are  founded  be  rigorously  examined,  may  be  an 
instructive  source  of  information  upon  Prize  Law ;  and  he  himself 
enumerates  "  the  adjudication  of  Boards  of  Arbitrators  and  Prize 
Courts"  among  the  sources  of  International  Law,  ascribing  greater  weight 
to  the  former  than  to  the  latter  authority. 

It  is  true  that  the  value  of  the  judgments  referred  to  depends  upon 
the  principles,  reasonings,  and  authorities  upon  which  they  rely ;  but  it 
is  the  constant  practice  in  these  cases  to  state  the  data  at  length,  as  well 
ae  the  judicial  conclusion ;  and  Mr.  Wheaton  himself  does  not  suggest 
that  the  latter  are  often  found  inconsistent  with  the  former. 

In  tho  very  elaborate  letter  addressed,  March  28,  1843,  to  the  British 
Government,  by  Mr.  Webster,  then  Foreign  Secretary  to  the  United 
States,  that  eminent  person,  after  contending  that  there  is  no  distinction 
between  the  right  of  Visitation  and  the  right  of  Search,  observes  :  "  If 
such  well-known  distinction  exists,  where  are  the  proofs  of  it  ?  What 
writers  of  authority  on  the  public  law,  what  adjudications  in  Courts  of 
Admiralty,  what  public  Treaties,  recognise  it  ?"(&) 

As  reference  has  been,  and  must  afterwards  be  made,  in  the  course  of 
this  work,  to  tfoe  judgments  of  Lord  Stowell,  and  as  it  is  important  to 
r  ^ .  -,  mark  the  place  which  these  are  *entitled  to  occupy  among  the 
-"  sources  of  International  Law,  the  opinion  of  American  jurists 
with  respect  to  them  becomes  valuable,  and  for  many  reasons.  When 
they  were  deli.vered,  the  greater  portion  of  Continental  Europe  was  under 
the  actual  dominion,  or  at  least  the  predominating  influence  of  France, 
which  then  disregarded  all  the  authorities  of  the  ancient  Law  of  Nations. 
These  judgments  contain  frequent  references  to  French  writers  upon 
Maritime  Law,  and  to  Vattel  generally,  as  a  work  of  the  highest  autho- 
rity. The  assent  or  dissent  therefore  of  France,  and  the  countries  sub- 
ject to  France  at  that  time,  could  not  affect  the  merit  of  these  decisions. 
The  United  States  of  North  America,  however,  were  naturally  inclined 
to  favour  France  from  motives  of  gratitude.  These  States  composed  a 
free  maritime  nation,  daily  increasing  in  all  the  elements  of  national 
greatness  and  prosperity;  occupying  an  immense  territory  in  the  new 
world;  avowedly  adhering  to  the  system  of  International  Law(o)  as  ac- 
knowledged and  received  at  the  time  when  they  became  an  independent 
kingdom:  they  were  themselves,  during  a  portion  of  the  momentous 
period  over  which  these  decisions  extend,  a  Neutral  Power,  upon  whom 
the  principles  laid  down  in  them  pressed,  however  justly,  with  great 
and  acknowledged  severity;  and  during  another  portion  a  Belligerent, 

(b)  Wheaton's  Hist.  p.  Til. 

(c)  Commentaries  upon  American  Law,  by  Mr.  Chancellor  Kent,  vol.  i.  p.  1,  citing 
instance  of  the  4th  of  December,  1781;  Annals  of  Congress,  vol.  vii.  185. 


DECISIONS     OF     PRIZE     COURTS.  81 

actuated  by  the  keenest  hostility  against  the  country  in  which  these 
judgments  were  delivered. 

The  verdict  of  such  a  nation  is  unquestionably  entitled  to  great  weight 
in  matters  of  International  Law,  and  not  open  to  the  charge,  with  respect 
to  this  epoch  at  least,  of  partiality  to  the  Prize  Tribunals  of  Great  Bri- 
tain. For  this  reason,  the  opinion  of  Mr.  Chancellor  Kent  upon  the 
subject  of  Lord  Stowell's  judgments  is  very  valuable.  A  portion  of  the 
Chancellor's  work  was  devoted  by  him  to  the  subject  *of  Inter-  r*cc-i 
national  Jurisprudence,  and  it  is  certainly  in  no  way  inferior  to  L  J 
the  rest  of  the  commentaries  which  have  earned  for  him  a  very  high 
legal  reputation  in  the  Western  hemispherej(d) — 

"In  the  investigation  of  the  rules  of  the  Modern  Law  of  Nations,  par- 
ticularly with  regard  to  the  extensive  field  of  maritime  capture,  reference 
is  generally  and  freely  made  to  the  decisions  of  the  English  Courts. 
They  are  in  the  habit  of  taking  accurate  and  comprehensive  views  of 
general  jurisprudence,  and  they  have  been  deservedly  followed  by  the 
Courts  of  the  United  States  on  all  the  leading  points  of  National  Law. 
We  have  a  series  of  judicial  decisions,  in  England  and  in  this  country, 
in  which  the  usages  and  the  duties  of  nations  are  explained  and  declared 
with  that  depth  of  research,  and  that  liberal  and  enlarged  inquiry,  which 
strengthen  and  embellish  the  conclusions  of  reason.  They  contain  more 
intrinsic  argument,  more  full  and  precise  details,  more  accurate  illustra- 
tions, and  are  of  more  authority,  than  the  loose  dicta  of  elementary 
writers.  When  those  courts  in  this  country  which  are  charged  with  the 
administration  of  International  Law  have  differed  from  the  English  ad- 
judications, we  must  take  the  law  from  domestic  sources;  but  such  an 
alternative  is  rarely  to  be  met  with ;  and  there  is  scarcely  a  decision  in 
the  English  Prize  Courts  at  Westminster,  on  any  general  question  of  pub- 
lic right,  that  has  not  received  the  express  approbation  and  sanction  of 
our  National  Courts.  We  have  attained  the  rank  of  a  great  commercial 
nation;  and  war,  on  our  part,  is  carried  on  upon  the  same  principles  of 
maritime  policy  which  have  directed  the  forces,  and  animated  the  coun- 
cils of  the  naval  powers  of  Europe.  When  the  United  States  formed  a 
component  part  of  the  British  Empire,  our  Prize  Law  and  theirs  was  the 
same ;  and  after  the  Revolution  it  continued  to  be  the  same  as  far  as  it 
was  adapted  to  our  circumstances,  *and  was  not  varied  by  the  rjicco-i 
power  which  was  capable  of  changing  it.  The  great  value  of  a  L 
series  of  judicial  decisions  in  prize  cases,  and  on  other  questions  depend- 
ing on  the  Law  of  Nations,  is,  that  they  render  certain  and  stable  the 
loose  general  principles  of  that  Law,  and  show  their  application,  and 
how  they  are  understood,  in  the  country  where  the  tribunals  are  sitting. 
They  are,  therefore,  deservedly  received  with  very  great  respect,  and  are 
presumptive,  though  not  conclusive  evidence  of  the  Law  in  the  given 
case."  This  was  the  language  of  the  Supreme  Court  of  the  United  States 
so  late  as  1815;  and  the  decisions  of  the  English  High  Court  of  Admi- 
ralty, especially  since  the  year  1798,  have  been  consulted  and  uniformly 
respected  by  that  Court  as  enlightened  commentaries  on  the  Law  of 

(d)  Kent's  Commentaries  upon  American  Law,  vol.  i.  p.  68. 


82  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Nations,  and  affording  a  vast  variety  of  instructive  precedents  for  the 
application  of  the  principles  of  that  Law. 

Few  names  have  obtained  greater  celebrity  upon  questions  of  Inter- 
national Law  than  that  of  Dr.  Story;  and  with  his  opinion  this  branch 
of  the  subject  may  be  concluded :  "How  few/'  he  says,  "have  read  with 
becoming  reverence  and  zeal  the  decisions  of  that  splendid  jurist — the 
ornament,  I  will  not  say,  of  his  own  age  or  country,  but  of  all  ages  and 
all  countries;  the  intrepid  supporter  equally  of  neutral  and  belligerent 
rights;  the  pure  and  spotless  magistrate  of  nations,  who  has  administered 
the  dictates  of  universal  jurisprudence  with  so  much  dignity  and  discre- 
tion in  the  Prize  and  Instance  Courts  of  England ! — Need  I  pronounce 
the  name  of  Sir  William  Scott?" 

The  seal  of  Courts  of  Admiralty,  being  also  Courts  of  International 
Law,  is  judicially  taken  notice  of,  without  positive  proof  of  its  authen- 
ticity, by  the  Courts  of  all  Nations,  (e) 


[*58]  ^CHAPTER  VII. 

WRITERS  ON   INTERNATIONAL   LAW. 

LX.  THE  consent  of  nations  is  further  evidenced  by  the  concurrent 
testimony  of  great  writers(a)  upon  International  Jurisprudence.  The 
works  of  some  of  them  have  become  recognised  digests  of  the  principles 
of  the  science  ;  and  to  them  every  civilized  country  yields  great,  if  not 
implicit  homage. (6) 

(e}  Yeaton  v.  Fry,  5  Cranch's   (American)  Rep.  335,  343  (Oh.  J.  Marshall)  ; 

F*571  '^'^omPson  v-  Stewart,  3  Conn.  (American)  Rep.  171;  2  *Kent's  Commen- 

-"  taries,  121,  note.     But  the  rule  is  different  as  to  the  seal  of  other  foreign 

courts:  Delafield  v.  Hand,  3  Johns.  (American)  Rep.  310;  Desobrey  v.  Laistre,  2 

Harr.  &  Johns.  (American)  Rep.  192. 

Henry  v.  Adey,  3  East  221 :  "In  an  action  upon  a  judgment  obtained  in  the 
island  of  Grenada,  the  plaintiff,  at  the  trial  before  Lord  Ellenborough,  C.  J.,  at 
the  sittings  after  last  term  at  Guildhall,  proved  the  handwriting  of  the  Judge  of 
the  Court  subscribed  to  the  instrument  purporting  to  be  the  judgment  of  the 
Court,  but  could  not  prove  that  the  seal  affixed  to  it  was  the  seal  of  the  island  ; 
for  want  of  which  proof  the  plaintiff  was  nonsuited."  The  Court,  on  an  applica- 
tion to  set  aside  the  nonsuit,  upheld  it. 

(a)  See  some  very  sensible  remarks  on  this  head,  by  M.  Ortolan,  Diplomatic  de 
la  Mer,  1.  i.  c.  iv.  t.  i.  p.  74,  &c. 

"  Text  writers  of  authority  showing  what  is  the  approved  usage  of  nations,  or 
the  general  opinion  respecting  their  natural  conduct,  with  the  definitions  and 
modifications  introduced  by  general  consent,"  are  placed  as  the  second  branch  of 
International  Law  by  Wheaton. — El.  of  Int.  Law,  vol.  i.  p.  59. 

(6)  The  English  Courts  of  Common  Law,  and  English  commentators  upon  that 
law,  both  in  cases  of  public  and  private  International  Law,  have  been  in  the  habit 
of  referring  to  other  works  of  these  foreign  authors,  as  containing  evidence  of  the 
law  to  be  administered  in  England :  e.  g.  see  Comyn's  Digest,  tit.  Ambassador, 
where  Grotius  is  cited.  See  the  authorities  cited  by  Lord  Mansfield  in  the  cases 
relating  to  ambassadorial  privileges,  mentioned  in  a  later  part  of  this  work;  and 
see  the  whole  part  of  this  work  on  Comity,  or  Private  International  Law.  Lord 
Mansfield,  in  fact,  built  up  the  fabric  of  English  Commercial  Law  upon  the  foun- 
dation of  the  principles  contained  in  the  works  of  foreign  jurists.  In  the  Admi- 


WRITERS     ON     INTERNATIONAL     LAW.  83 

When  Grotius  wrote  his  immortal  work  he  derived  but  little  help(c) 
from  any  predecessor  in  the  noble  career  which  *he  chose  for 
himself.  Albericus  G-entilis,  Arthur  Duck,  and  Suarez  had  in- 
deed  left  him  materials  of  which  he  fully  availed  himself,  as  well  as  of 
the  labours  of  publicists  like  Ayala  and  Bacon,  and  of  the  commentators 
on  the  Civil  and  Canon  Law  ;  but  he  may  be  almost  said  to  have  him- 
self laid  the  foundation  of  that  great  pillar  of  International  Law — the 
authority  of  International  Jurists.  His  own  book,  one  of  the  firmest 
barriers  yet  erected  by  Christendom  against  barbarism,  and  the  works  of 
some  subsequent  writers  upon  the  same  subject,  have  long  obtained  the 
honour  of  being  the  repositories  to  which  nations  have  recourse  for  argu- 
ment to  justify  their  acts  or  fortify  their  claims.  They  are  indeed,  with 
the  modifications  that  reason  and  usage  apply,  admitted  umpires  in  In- 
ternational disputes ;  and  this  fact  has  greatly  contributed,  and  still  does 
contribute,  to  clothe  the  Law  of  Nations,  more  and  more,  with  the  pre- 
cision and  certainty  of  positive  and  municipal  law. 

The  value  ascribed  to  the  opinion(rf)  of  each  writer,  in  the  event  of 
there  being  a  difference  between  them,  is  a  point  upon  which  it  is  impos- 
sible to  lay  down  a  precise  rule ;  but  among  the  criteria  of  it  will  be  the 
length  of  time  by  which  it  is,  as  it  were,  consecrated,  the  period  when  it 
was  expressed,  the  reasoning  upon  which  it  rests,  the  usage  by  which  it 
has  been  since  strengthened,  and  to  the  previous  existence  of  which  it 
testifies.  (e\ 

*When,  on  the  other  hand,  their  authority,  in  the  absence  of  .-  #~~  -, 
any  contrary  usage  or  convention,  may  be  safely  said  to  be  bind-  *• 
ing  upon  all  nations  :  "  All  writers  upon  the  Law  of  Nations  unanimously 
acknowledge  it,"  is  not  the  least  of  Lord  Stowell's  arguments  for  the 
belligerent's  right  of  search. (/") 

"  In  cases  where  the  principal  jurists  agree,  the  presumption  will  be 
very  great  in  favour  of  the  solidity  of  their  maxims :  and  no  civilized 
nation  that  does  not  arrogantly  set  all  ordinary  law  and  justice  at  defi- 

ralty  and  Ecclesiastical  Courts,  these  works  had  been  always  referred  to  as  autho- 
rities. It  is  by  these  courts  indeed,  and  the  practitioners  therein,  that  the  study  of 
Civil  and  International  Law  was  alone  preserved  from  perishing  in  these  islands : 
the  seed  was  sown  and  kept  alive  in  them,  which  subsequently  bore  fruit  of  which 
no  country  need  be,  ashamed. — See  Preface,  by  Dr.  Phillimore,  to  Sir  G.  Lee's 
Reports. 

(c)  Grotii  Prolegomena,  xxiii.,  as  to  the  auxilia  scrtpti  which  he  had. 

"  Solent  autem  gentium  sententiae  de  eo  quod  inter  illos  justem  esse  debent 
triplici  modo  manifestari  moribus  scilicet  et  usu,  pactis  et  foederibus,  et  tacita 
approbatione  juris  regularum  a  prudentibus  ex  ipsis  rerum  causis  per  interpreta- 
tionem  et  per  rationem  deductarum." — Warnkcenig,  Doctrina  Juris  Philosophica 
Aphorismis  Distincta  (a  most  valuable  little  work,)  s.  146,  p.  190. 

(d)  No  rule  of  International  Law  exists  like  that  of  the  Imperial  Law  of  Rome, 
which  decided  that  the  opinions  of  Papinianus,  Paulus,  Gaius,  Ulpianus,  and  Mo- 
destinus  should  have  the  force  of  law  ;  that,  in  points  where  they  differed,  the 
opinion  of  the  majority,  and,  where  they  were  equally  divided,  the  side  on  which 
Papinianus  was  found,  should  prevail. — Th.  Cod.  i.  4,  De  Responsis  Prudentum 
L.  un. ;  Ib.  ix.  3,  L.  un.  Pr.  de  Sent.  Pass. ;  Cod.  ix.  51, 13  de  Sent  Pass. ;  Muhlen- 
bruch,  Doctr.  Pand.  Pr.  s.  8. 

(e)  Vattel  cited  "as  a  witness  as  well  as  a  lawyer." — The  Maria,  1  Rob.  Adm. 
Rep.  p.  363.     See  the  case  generally  on  this  point. 

(/)  The  Maria,  1  Rob.  Adm.  Rep.  p.  360. 


84  PHILLIMORE    ON    INTERNATIONAL    LAW. 

ance  will  venture  to  disregard  the  uniform  sense  of  the  established  writers 
of  International  law."(#) 

And  how  great  is  the  advantage  of  this,  that  a  controversy  between 
France  and  England  should  be  capable  of  being  referred  to  principles 
laid  down  by  an  arbitrator  who  existed  long  before  the  disunion  arose, 
and  whom  it  is  impossible  to  accuse  of  partiality !  This  remark  sup- 
poses the  reference  made  to  a  neutral  jurist,  belonging  to  neither  coun- 
try ;  but  the  advantage  is  not  so  limited — it  may  be  that  the  authorities 
belonging  to  the  very  country  which  is  urging  a  demand  will  be  found 
to  pronounce  against  it. 

If  the  authority  of  Zouch,  of  Lee,  of  Mansfield,  and,  above  all,  of 
Stowell,  be  against  the  demand  of  England — if  Valin,  Domat,  Pothier, 
and  Vattel(^)  be  opposed  to  the  pretensions  of  France — if  Grotius  and 
Bynkershoek  confute  the  claim  of  Holland — Puffendorff  (t)  that  of  Swe- 
r  *fi1  1  ^en — ^  *Heineccius,  Leibnitz,  and  Wolff  array  themselves 
-I  against  Germany — if  Story,  Wheaton,  and  Kent  condemn  the 
act  of  America,  it  cannot  be  supposed  (except,  indeed,  in  the  particular 
epoch  of  a  Revolution,  when  all  regard  to  law  is  trampled  underfoot) 
that  the  argumentum  ad  patriam  would  not  prevail — at  all  events,  it 
cannot  be  doubted  that  it  ought  to  prevail,  and  should  the  country  rely- 
ing upon  such  authority  be  compelled  to  resort  to  arms,  that  the  guilt  of 
the  war  would  rest  upon  the  antagonist  refusing  to  be  bound  by  it. 

It  is  with  reference  to  the  authority  of  jurists  that  we  find  Lord  Sto- 
well using  such  expressions  as  these:  "It  is  the  necessary  consequence 
acknowledged  in  all  books."  "  The  institution  (i.  e.  of  a  particular  state 
with  respect  to  a  matter  of  the  Law  of  Nations)  must  conform  to  the 
text  law,  and  likewise  to  the  constant  usage  upon  this  matter;"  and 
again,  "  all  writers  upon  the  Law  of  Nations  unanimously  acknowledge 
it,  without  the  exception  of  even  Hubner  himself,  the  great  champion  of 
neutral  privileges." 

And  Lord  Mansfield,  deciding  a  case  in  which  the  privileges  of  the 
attendant  of  an  ambassador  were  concerned,  said — "  I  remember,  in  a 
case  before  Lord  Talbot,  of  Burvot  v.  Barbut,  upon  a  motion  to  discharge 
the  defendant  (who  was  in  execution  for  not  performing  a  decree)  { be- 
cause he  was  agent  of  commerce,  commissioned  by  the  king  of  Prussia, 
and  received  here  as  such/  the  matter  was  very  elaborately  argued  at  the 
bar,  and  a  solemn,  deliberate  opinion  given  by  the  court.  These  ques- 
tions arose  and  were  discussed :  <  Whether  a  minister  could,  by  any  act 

(<f\  Kent's  Commentaries,  vol.  i.  p.  19. 

(h)  "  I  stand  with  confidence  upon  all  fair  principles  of  reason — upon  the  dis- 
tinct authority  of  Vattel — upon  the  Institutes  of  other  great  maritime  countries  as 
well  a  those  of  our  own  countries — when  I  venture  to  lay  it  down  that,  by  the 
Law  of  Nations,"  &c. — The  Maria,  3  Rob.  Adm.  Rep.  p.  369  (Lord  Stowell.) 

(i)  So,  in  the  case  of  the  Swedish  convoy,  Lord  Stowell  said :  "  If  authority  is 
required,  I  have  authority — and  not  the  less  weighty  in  this  question  for  being 
Swedish  authority ;  I  mean  the  opinion  of  that  distinguished  person — one  of  the 
most  distinguished  which  that  country  (fertile  as  it  has  been  of  eminent  men)  has 
ever  produced — I  mean  Baron  PufFendorff.  ...  In  the  opinion,  then  of  this  wise 
and  virtuous  Swede  .  .  .  his  words  are  memorable.  I  do  not  overrate  their 
importance  when  I  pronounce  them  to  be  well  entitled  to  the  attention  of  his 
country." 


WRITERS    ON     INTERNATIONAL    LAW.  85 

or  acts,  waive  his  privilege  ?' — <  whether  being  a  trader  was  any  objec- 
tion against  allowing  privilege  to  a  minister  personally  ?' — '  whether  an 
agent  of  commerce,  or  even  a  consul,  was  entitled  to  the  privileges  of  a 
public  minister  ?' — <  what  was  *the  rule  of  decision  ?'  Lord  Tal-  .-  ^n ., 
t>ot  declared  a  clear  opinion,  <  That  the  Law  of  Nations,  in  its  L 
full  extent,  was  part  of  the  law  of  England;'  'that  the  Act  of  Parlia- 
ment was  declaratory,  and  occasioned  by  a  particular  incident ;'  <  that 
the  Law  of  Nations  was  to  be  collected  from  the  practice  of  different 
nations,  and  the  authority  of  writers.'  Accordingly,  he  argued  and  de- 
termined from  such  instances,  and  the  authority  of  Grotius,  Barbeyrac, 
Bynkershoek,  Wiquefort,  &c.,  there  being  no  English  writer  of  eminence 
upon  the  subject.(A:) 

In  truth,  a  reverence  for  the  opinions  of  accredited  writers  upon  Pub- 
lic and  International  Law  has  been  a  distinguishing  characteristic  of 
statesmen  in  all  countries,  and  perhaps  especially  of  those  who  have 
deserved  that  appellation  in  this  kingdom. 

It  has  been  felt,  and  eloquently  expressed  by  them,  that  though  these 
writers  were  not  infallible,  nevertheless,  "  the  methodized  reasonings  of 
the  great  publicists  and  jurists  formed  the  digest  and  jurisprudence  of 
the  Christian  world;"  that  their  works  contained  principles  which  in- 
fluenced every  state,  and  constituted  the  permanent  and  embodied  voice 
of  all  civilized  communities ;  and  that  upon  their  decisions  depended  one 
of  the  best  securities  for  the  observance  and  preservation  of  right  in  the 
society  of  nations. 

Sir  James  Mackintosh,  in  his  speech  on  the  annexation  of  Genoa  to 
the  kingdom  of  Sardinia,  touched  upon  this  important  subject,  in  the 
following  well-weighed  and  emphatic  terms :  «<It  is  not  my  disposition 
to  overrate  the  authority  of  this  class  of  writers,  or  to  consider  authority 
in  any  case  as  a  substitute  for  reason.  But  these  eminent  writers  were, 
at  least,  necessarily  impartial.  Their  weight,  as  bearing  testimony  to 
general  sentiment  and  civilized  usage,  receives  a  new  accession  from 
every  statesman  who  appeals  to  their  *writings,  and  from  every  r  ^n  -. 
year  in  which  no  contrary  practice  is  established,  or  hostile  prin-  L 
ciples  avowed.  Their  works  are  thus  attested  by  successive  generations 
to  be  records  of  the  customs  of  the  best  times,  and  depositories  of  the 
deliberate  and  permanent  judgments  of  the  more  enlightened  part  of 
mankind.  Add  to  this,  that  their  authority  is  usually  invoked  by  the 
feeble,  and  despised  by  those  who  are  strong  enough  to  need  no  aid  from 
moral  sentiment,  and  to  bid  defiance  to  justice.  I  have  never  heard 
their  principles  questioned,  but  by  those  whose  flagitious  policy  they  had 
by  anticipation  condemned."^) 

In  the  same  spirit  Cicero  had  long  ago  observed :  "  Qui  peritis  non 
putat  esse  obtemperandum,  non  homines  Icedit  sed  leges  ac  jura  labe- 
factat."(w) 

(k)  Triquet  and  Others  v.  Bath,  Peach  and  Others  v.  Same,  3  Burrows's  Rep. 
1480. 

Burke's  Work,  vol.  xiii.  p.  235,  Letters  on  a  Regicide  Peace. 
(I)  The  Miscellaneous  Works  of  Sir  J.  Mackintosh,  vol.  iii.  p.  342. 
(m)  Cicero,  pro  Ccecina,  ss.  23 — 25. 
Suarezhas  the  following  remarks  concerning  what  he  designates  the  doctrinalis 


86  PHILLIMORE    ON    INTERNATIONAL    LAW. 

[*64]  *CHAPTEE    VIII. 

RECAPITULATION   OF   SOURCES   OP  INTERNATIONAL  LAW. 

THE  sources,  then,  from  which  International  Jurisprudence  is  derived, 
are  these : — 

1.  The  Divine  Law,  in  both  its  branches — namely :  The  principles  of 
Eternal  Justice  implanted  by  God  in  all  moral  and  social  creatures,  of 
which  nationd  are  the  aggregate,  and  of  which  governments  are  the  In- 
ternational Organs — 

2.  The  Kevealed  Will  of  God,  enforcing  and  extending  these  princi- 
ples of  Natural  Justice. 

3.  Reason,  which  governs  the  application  of  these  principles  to  par- 
ticular cases,  itself  guided  and  fortified  by  a  constant  reference  to  analo- 
gous cases  and  to  the  "  written  reason"  embodied  in  the  text  of  the  Roman 
Law,  and  in  the  works  of  Commentators  thereupon. 

4.  The  universal  consent  of  nations,  both  as  expressed  (1)  by  positive 
compact  or  treaty,  and  (2)  as  implied  by  usage,  custom,  and  practice : 
such  usage,  custom,  and  practice  being  evidenced  in  various  ways — by 
precedents  recorded  in  History,  by  being  embodied  and  recorded  in 
Treaties;  in  public  documents  of  States;  in  the  Marine  Ordinances  of 
States;  in  the  decisions  of  International  Tribunals;  in  the  works  of  emi- 
nen  t  writers  upon  International  Jurisprudence. 

LXI.  It  may  be  well  to  illustrate  by  an  example  the  practical  appli- 
cation of  the  principles  of  International  Law  derived  from  the  sources 
which  have  been  enumerated  in  the  preceding  pages. 

In  1839,  the  Emperor  of  China  seized  the  opium  of  certain  British 
merchants  at  Canton.  Reparation  was  demanded  by  Great  Britain,  and 
on  the  refusal  of  it,  war  followed  between  the  two  countries.  Peace 
r  *fi^~l  i^e^DS  made,  an(l  the  reparation  promised,  a  question  arose,  Whe- 
L  J  'ther,  *according  to  the  principles  of  International  Law,  the  mea- 
sure of  compensation  which  one  government  ought  to  demand  of  another 
for  the  forcible  seizure  of  the  property  of  its  subjects  with  the  cost  price 
of  the  property,  or  its  market  price  at  the  place  of  seizure  ? 

This  curious  and  important  question  between  a  Christian  and  civilized 
Heathen  nation  might  have  been  impartially  answered  by  a  reference  to 
the  principles  of  the  Roman  Law,  and  to  the  commentaries  of  foreign 
jurists,  aided  by  the  analogy  derived  from  similar  cases  adjudicated  upon 
between  subject  and  subject,  both  in  England  and  other  countries.  The 
decision  which  these  authorities  pronounced  would  have  furnished  no  un- 

interpretatio  of  Laws  :  "  De  Me  igitur  interpretatione  certum  est,  non  habere  vim 
legis,  quia  non  procedit  a  potestate  jurisdictionis,  sed  i\  scientia,  et  judicio  pruden- 
tum  ;  et  ideo  dicimus  per  se  non  inducere  obligatiodem.  Quia  verd  in  omni  arte 
judicium  peritorum  in  ilia  magnam  inducit  probabilitatem,  ideo  etiam  in  hac  legum 
humanarum  interpretatione  hcec  doctrinalis  interpretatio  magnum  habet  authori- 
tatis  pondus.  In  quo  varii  gradus  esse  possunt ;  nam  si  in  alicujus  legis  intelli- 
gentia  omnes  interpretes  conveniant,  faciunt  humanam  certitudinem,  et  regulariter 
loquendo,  etiam  inducnnt  obligationcm  servandilegem,  et  utendi  ilia  in  praxi juxta 
talem  interpretationem." — De  Legibus,  lib.  vi. 


INSTANCE     OF     APPLICATION    OP    LAW. 

fair  measure  of  the  redress  due  from  the  Chinese  government  to  the  sub- 
jects of  Great  Britain. 

The  claims  of  the  British  government  on  behalf  of  her  merchant  sub- 
jects might  have  been  supported  by  the  following  arguments :  First,  the 
obligations  which  the  Chinese  Government  would  have  incurred  if  they 
had  simply  constituted  themselves  the  purchasers  of  the  opium,  and  de- 
ferred the  payment  till  the  period  of  the  treaty ;  and,  Secondly,  the  obli- 
gations which  they  incurred  by  the  act  of  violence,  and  the  character  of 
wrong-doers  with  which  that  act  clothed  them. 

As  to  the  first  point,  then — that  is  to  say,  let  the  Chinese  be  consi' 
dered  simply  as  debtors,  who  had  delayed  the  fulfilment  of  their  contract 
till  the  price  of  the  article  had  fallen  in  the  market.  Perhaps  the  por- 
tion of  the  Roman  Lawjwhich,  on  account  of  its  acknowledged  wisdom 
and  equity,  is  most  generally  incorporated  into  the  municipal  codes  of 
Europe  is  that  which  relates  to  obligations.  One  of  the  most  celebrated 
expounders  of  this  branch  of  Jurisprudence  is  Pothier.  In  the  third 
article  of  the  second  chapter,  and  first  part  of  his  Treatise,  he  considers 
"  des  dommages,  et  interets  resultans,  soit  de  1'inexecution  des  obliga- 
tions, soil  du  retard  apporte  a  leur  execution."  And  he  begins  by  de- 
fining his  subject  thus  :  "On  appelle  dommages  et  interets,  la  perte  que 
quelqu'un  a  faite,  et  le  gain  qu'il  a  manque  de  faire  :  *c'est  la  r  £,,,,  -. 
definition  qu'en  donne  la  loi(13  Ff.  Rat.  rem  hob.} — Quantum  L 
med  interfuit  id  est  quantum  mihi  abest,  guantumque  lucrari  potui." 
The  result  of  his  examination  of  this  law  is,  that  in  all  cases,  even  where 
the  debtor  is  guilty  of  no  bad  faith,  he  shall  be  compelled  to  idemnify 
the  creditor  both  for  the  actual  loss  which  he  has  sustained,  and  for  the 
gain  which  it  may  reasonably  be  supposed  that  he  would  have  made,  had 
he  not  been  impeded  by  his  engagement.  In  cases  of  bad  faith,  the  rule 
is  much  more  severe. 

A  particular  kind  of  action  was  known  to  the  Roman  Law,  in  cases 
where  the  price  or  value  of  a  thing  in  which  one  person  was  indebted  to 
another  was  sought  in  lieu  of  the  thing  itself,  payment  of  which  had 
been  delayed.  The  action  was  called,  for  an  antiquated  reason  which 
need  not  be  discussed,  Condictio  triticaria  ;(a\  and  it  is  most  learnedly 
treated  by  J.  Voet,  who  says,  it  is  necessary  to  consider,  first,  whether 
the  value  of  the  thing  is  the  principal  object  of  the  suit,  or  whether  the 
thing  itself  be  the  principal  object,  and  the  value  only  the  necessary 
substitute,  under  the  circumstances.  If  it  be  the  value  of  the  thing,  if 
the  price  was  to  be  paid  in  money,  the  law,  he  says,  is  clear — the  sum 
due  is  to  be  measured  by  the  value  of  the  article  at  the  time  when  the 
obligation  was  first  contracted,  not  at  the  time  when  the  payment  was 
enforced. (6)  If  the  thing  itself  be  the  principal  object  of  the  suit,  its 
value  should  be  estimated,  either  by  that  which  it  was  worth  at  the  time 
of  beginning  the  suit  (litis  contestatio),  or  at  the  time  the  sentence  was 

(a}  Dig.  de  Condic.  Tritic.  xiii.  iii.  1. 

(b)  "  Neque  aliam  contrahentes  videripossunt  aestimationem  adeoque  quantita- 
tem  pecnniariam  respexisse,  quam  quae  fuit  eo  tempore,  quo  primitus  obligatio 
nascebatur,  sive  bonse  fidei  sive  stricti  juris  negotium  sit." — Voet,  ad  Paud.  1.  xiii. 
tit.  iii. 


PIIILLIMORE     ON    INTERNATIONAL    LAW. 

pronounced  (condemnationis  tempus}  ;  provided  always  that  no  delay  lias 
been  caused  by  the  party  against  whom  the  suit  is  brought,  because  then 
"  dubium  non  est,  quin  frustratio  moratori,  et  non  alteri  obesse  dcbeat  ; 
ac  propterea,  si  inter  moram  et  litem  contestatam  remve,  judicatam  res 
r  p--,  pluris  valuerit,  quam  *ipso  litis  contestatae  vel  condemnationis 


momento,  reus  in  id,  quanti  res  plurimi  fuit,  a  tetnpore  moras  ad 
teinpus  litis  con  testates,  in  stricti  juris,  aut  rei  judicatae  in  bonae  fidei  ju- 
diciis,  damnandus  foret." 

There  can  be  no  doubt  that  the  Chinese  Government  was  the 
"Morator"  in  this  case,  or  that,  according  to  the  maxim  of  jurispru- 
dence which  has  been  cited,  it  ought  to  have  been  condemned  in  the 
costs  of  the  opium  at  the  time  it  became  possessed  of  that  article,  unless, 
between  that  period  and  the  period  of  restitution,  the  opium  had  become 
of  greater  value;  for  the  only  doubt  raised  by  Voet  is,  whether  in  cases 
of  bona  fides,  the  augmented  price  should  be  due. 

Again,  from  the  time  of  the  seizure,  the  Chinese  Government  became 
the  Emptor  ;  and  whatever  depreciation  of  price  happened  in  the  interim 
betwixt  that  time  and  the  treaty,  enured  to  the  detriment  of  the  pur- 
chasers, no  maxim  being  clearer  than  "periculum  rei  venditse  ad  emptorem 
statim  pertinet."(c) 

Again,  let  the  Chinese  government  be  considered,  not  as  the  actual 
purchasers,  but  as  securities  for  the  payment  of  the  money,  and  let  the 
question  be  tried  by  the  principle  of  Commercial,  which  is  quasi  Inter- 
national Jurisprudence.  What  is  the  value  in  which  the  insurer  is 
bound  to  indemnify  the  insured  —  that  of  the  goods  at  the  time  of  their 
loss,  or  that  of  their  invoice  price?  Emerigon,  no  light  authority,  is 
clear  upon  this  point.  He  says,(cZ)  adopting  the  language  of  other  writers, 
"  En  fait  de  pret  a  la  G-rosse  et  d'  Assurance,  on  ne  fait  point  attention 
a  la  valeur  des  effets  au  temps  de  leur  perte;  mais  seulement  a  ce  qu'ils 
valoient  au  temps  de  leur  chargement."  So  the  English  law  adopts  the 
original  value  of  the  goods  as  the  basis  of  the  calculation  of  the  amount 
in  which  the  partial  loss  of  the  insured  is  to  be  indemnified  by  the  in- 
surer, (e) 

fi«T  Secondly,  as  to  the  obligations  which  the  Chinese  Government 
L  -1  *incurred  by  its  act  of  violence,  and  by  the  character  of  a  wrong- 
doer with  which  it  thereby  clothed  itself;  and  if  the  language  and  spirit 
of  Roman  Jurisprudence  was  in  favour  of  the  claim  of  the  opium  owners 
against  the  Chinese  Government,  considered  as  simple  debtors,  or  as 
securities  for  debtors,  infinitely  more  was  it  in  their  favour  against  that 
government  treated  as  wrong-doers. 

And,  first,  as  to  the  Civil  Law,  which  throughout  that  chapter,  "De 
obligationibus  quse  ex  delicto  nascuntur,"  teems  with  analogies,  and  those 
of  great  force  and  directly  bearing  upon  this  subject. 

When  a  party,  wrongfully  deprived,  was  reinstated  in  his  property  by 
the  well-known  decree  of  the  Praetor,  the  "  restitutio  in  integrum"  —  the 
law  said,  "Sive  quid  amiserit  sive  lucratus  non  sit,  restitutio  facienda 
est,  etiamsi  non  ex  bonis  quid  amissum  sit;"  and  in  cases  of  theft,  where 

c)  Vide  passim,  Dig.  lib.  xviii.  tit.  vi.  ;  Cod.  lib.  jv.  tit.  xlviii. 

Tom.  i.  p.  262.  (e)  Langhorn  v.  Allnutt,  4  Taunton's  Reports,  511. 


INSTANCE    OF    APPLICATION     OF    LAW.  89 

tlie  sentence  restored  with  heavy  damages  the  stolen  property,  it  also 
provided  for  the  value  of  the  property  where  it  could  not  be  so  restored 
— "aestimatione  relata  in  id  tempus  quo  furtum  factum  est."(/) 

So  by  the  "Lex  Aquilia,"  where  there  had  been  "damnum.  injuria 
datum,"  in  consequence  of  which  the  thing  had  diminished  in  value,  the 
measure  of  restitution  was  "quanti  ea  res  in  anno  plurimi  fuit  tantum 
domino  dare  damnetur;"^)  and  again  it  is  said,  "placet  ad  id  tempus 
spectandum  quo  res  unqum  plurimi  fuit." (A) 

So  Pothier,  in  the  chapter  already  cited,  after  stating  the  mitigating 
circumstances  attaching  to  transactions  of  bona  fides,  observes,(»)  "Les 
principes  que  nous  avons  etablis  jusqu'a  present  n'ont  pas  lieu,  lorsque 
c'est  le  dol  de  mon  debiteur  qui  a  donne  lieu  a  mes  dommages  et  interets. 
En  ce  cas  le  debiteur  est  tenu  indistinctement  de  tous  les  *dom- 
mages  et  interets  que  j'ai  soufferts,  auxquels  son  dol  a  donne 
lieu,  non-seulement  do  ceux  que  j'ai  soufferts  par  rapport  a  la  chose  qui 
a  fait  1'objet  du  central,  propter  rem  ipsam,  mais  de  tous  les  dommages 
et  interets  que  j'ai  soufferts  par  rapport  a  mes  autres  biens,  sans  qu'il  y 
ait  lieu  de  distinguer  et  de  discuter  en  ce  cas,  si  le  debiteur  doit  etre 
cense  s'y  etre  soumis;  car  celui  qui  commet  un  dol  s' oblige,  velit,  nolit, 
a  la  reparation  de  tout  le  tort  que  ce  dol  causera." 

Grotius,(y)  in  that  chapter  of  his  work  which  treats  "De  damno  in- 
juria dato,  et  de  obligationibus  quae  ex  delicto  nascuntur,"  fully  adopts 
these  maxims  of  the  civil  law. 

To  the  same  effect  are  the  instances  cited  by  Sir  John  Davis,(&)  in  a 
very  curious  case,  called  "Le  case  de  mixt  moneys."  In  that  case  the 
English  Privy  Council,(?)  assisted  by  the  Judges,  seem  to  have  said,  that 
if  a  man,  upon  marriage,  receives  £1000  as  a  portion  with  his  wife,  paid 
in  silver  money,  and  the  marriage  is  dissolved  causd  precontractus,  so 
that  the  portion  is  to  be  restored,  it  must  be  restored  in  equal  good  silver 
money,  though  the  state  shall  have  depreciated  the  currency  in  the  mean- 
time ;(m)  so  if  a  man  recover  ^6100  damages,  and  he  levies  that  in  good 
silver  money,  and  that  judgment  is  afterwards  reversed,  by  which  the 
party  is  put  to  restore  back  all  he  has  received,  the  judgment  creditor 
cannot  liberate  himself  by  merely  restoring  £100  in  the  debased  currency 
of  the  time,  but  he  must  give  the  very  same  currency  that  he  had  re- 
ceived. 

To  the  same,  or  even  to  a  stronger  effect  were  the  decisions  of  Lord 
Stowell(w)  in  restoring  captured  vessels  which  had  been  condemned  ly 
illegally  constituted  Courts  in  the  West  Indies.  The  ship  and  cargo 
were  directed  to  be  restored  in  value;  and  on  reference  being  made  to 
the  registrar  and  *merchants,  they  took  the  invoice  prices  as  the  r^m 
measure  of  the  value,  allowing  upon  it  ten  per  cent,  profit.  L 

(/)  Dig.  de  Furtis.  xlvii.  t.  2.  51.  Inst.  iv.  t.  iii.  (De  Lege  Aquilia.) 

(ff)  Dig.  lib.  ix.  tit.  ii.  23. 

(A)  Dig.  lib.  xiii.  tit.  i.  8.  1.     De  Condictione  Furtiva.  (t)  Lib.  i.  p.  72. 

(j)  De.  J.  B.  et  P.  lib.  ii.  c.  xvii.  (A)  Sir  John  Davis's  Reports,  p.  27. 

(I)  Knapp,  Privy  Council  Rep.  vol.  ii.  p.  20. 

(m)  Conf.  Burke,  Thoughts  on  the  French  Revolution,  v.  277. 

(H)  The  Lucy,  3  Robinson's  Adm.  Rep.  p.  208. 

JULY,  1854.— 7 


90  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Nor  was  this  a  solitary  case ;  it  was,  as  the  Queen's  advocate  of  that  day 
said,  "A  question  in  which  a  great  number  of  cases,  and  very  consider- 
able amount  of  property,  were  involved."(o) 

Lastly,  there  was  in  favour  of  this  position  the  elaborate  judgment  of 
Sir  William  Grant,  in  the  case  of  Pilkington  v.  The  Commissioners  for 
claims  on  France,  (p)  The  circumstances  of  that  case  were,  that  the 
Revolutionary  Government  had  confiscated  the  debts  owing  from  the 
subjects  of  France  to  those  of  Great  Britain.  By  the  Treaty  of  1814, 
compensation  was  to  be  made  to  the  latter.  Between  the  decree  of  con- 
fiscation and  the  repeal  of  it,  the  assignats  in  which  the  debts  were  to 
be  paid  had  been  depreciated  in  value :  it  was  disputed  whether  or  no 
the  depreciation  should  be  charged  to  the  French.  Sir  William  Grant, 
after  touching  upon  the  curious  question  of  depreciated  currency  as 
affecting  the  relations  of  debtor  and  creditor,  observes:  "I  have  said  it 
is  "  unnecessary  to  consider  whether  the  conclusion  drawn  by  Vinnius 
or  the  decision  in  Davis's  Reports  be  the  correct  one,  for  we  think  this 
has  no  analogy  to  the  case  of  creditor  and  debtor.  There  is  a  wrong 
act  done  ly  the  French  Government;  then  they  are  to  undo  that  wrong/ 
act,  and  to  put  the  party  into  the  same  situation  as  if  they  never  had 
done  it.  It  is  assumed  to  be  a  wrong  act,  not  only  in  the  Treaty,  but 
in  the  repealing  decree.  They  justify  it  only  with  reference  to  that 
which,  as  to  this  country,  has  a  false  foundation — namely,  on  the  ground 
of  what  other  Governments  had  done  towards  them,  they  having  confis- 
cated the  property  of  French  subjects;  therefore  they  say,  we  thought 
ourselves  justified  at  the  time  in  retaliating  upon  the  subjects  of  this 
country.  That  being  destitute  of  foundation  as  to  this  country,  the 
Republic  themselves,  in  effect,  confess  that  no  such  decree  ought  to  have 
r#71  -|  been  *made,  as  it  affected  the  subjects  of  this  country;  therefore 
L  J  it  is  not  merely  the  case  of  a  debtor  paying  a  debt  at  the  day  it 
falls  due,  but  it  is  the  case  of  a  wrong-doer,  who  must  undo,  and  com- 
pletely undo,  the  wrongful  act  he  has  done :  and  if  he  has  received  the 
assignats  at  the  value  of  50c?.,  he  does  not  make  compensation  by  return- 
ing an  assignat  which  is  only  worth  2(M. — he  must  make  up  the  differ- 
ence between  the  value  of  the  assignat  at  different  periods.  *  *  *  * 
If  the  act  is  to  be  undone,  it  must  be  completely  undone,  and  the  party 
is  to  be  restored  to  the  situation  in  which  he  was  at  the  time  the  act  to 
be  undone  took  place." 

If  in  the  case  of  the  British  merchants  and  the  Chinese  government, 
the  treaty  had  not  specified  the  sum  of  six  millions  for  the  compensation, 
but  merely  promised  in  general  terms  to  restore  the  value  of  the  opium 
seized — then  the  principles  of  International  Law  which  govern  the  con- 
struction of  treaties,^)  would  have  entitled  the  original  possessors  of  the 
opium  to  demand  the  most  favourable  interpretation  which  could  be  put 
upon  the  term  "  value. "(r\ 

The  conclusion  then  to  which  we  are  led  with  respect  to  the  case  which 
has  been  discussed,  from  the  application  of  the  principles  of  International 

(o)  The  Lucy,  3  Robinson's  Adm.  Rep.  p.  210. 

Qt>)  Knapp,  Privy  Council  Rep.  p.  19. 

(q)  Grotius,  lib.  ii.  c.  xiv.  (r)  Vattel,  t.  ii.  p.  33. 


OBJECTION     TO    INTERNATIONAL    LAW.  91 

Law,  derived  from  all  the  sources  which  have  been  enumerated,  is  this : 
That  the  British  government  would  have  been  justified  by  the  law  of 
nations  in  demanding  the  cost  price  of  the  opium  from  the  Chinese 
government,  even  if  the  depreciation  in  value  of  that  article  at  the  time 
of  the  conclusion  of  the  treaty  had  been  the  result  of  the  usual  fluctua- 
tions of  commerce.  It  is  obvious  that  this  conclusion  applied  with  in- 
creased force  to  a  case  where  the  diminished  value  was  one  of  the  conse- 
quences of  the  wrongful  acts  of  that  government  itself. 


*CHAPTER    IX.  [*72] 

OBJECTION   THAT   THERE   IS   NO   LAW  BECAUSE   NO   SUPERIOR. 

LXII.  IT  is  sometimes  said  that  there  can  be  no  law  between  nations 
because  they  acknowledge  no  common  superior  authority,  no  international 
executive  capable  of  enforcing  the  precepts  of  International  Law.  This 
objection  admits  of  various  answers :  First,  it  is  a  matter  of  fact  that 
states  and  nations  recognize  the  existence  and  independence  of  each 
other ;  and  out  of  a  recognized  society  of  nations,  as  out  of  a  society  of 
individuals,  Law  must  necessarily  spring.  The  common  rules  of  right 
approved  by  nations  as  regulating  their  intercourse  are  of  themselves,  as 
has  been  shown,  such  a  law.  Secondly,  the  contrary  position  confounds 
two  distinct  things  ;  namely,  the  physical  sanction  which  law  derives 
from  being  enforced  by  superior  power,  and  the  moral  sanction  conferred 
on  it  by  the  fundamental  principle  of  right ;  the  error  is  similar  in  kind 
to  that  which  has  led  jurists  to  divide  moral  obligations  into  perfect  and 
imperfect.  All  moral  obligations  are  equally  perfect,  though  the  means 
of  compelling  their  performance  is,  humanly  speaking,  more  or  less  per- 
fect, as  they  more  or  less  fall  under  the  cognizance  of  human  law. (a) 
In  like  manner,  international  justice  would  not  be  the  less  deserving  of 
that  appellation,  if  the  sanctions  of  it  were  wholly  incapable  of  being 
enforced. 

*How  far  and  by  what  means  they  are  capable  of  being  exe-  r  ^^  -, 
cuted  are  questions  which  have  been  already  alluded  to,  and  L 
which  will  be  more  fully  discussed  in  a  subsequent  portion  of  this  work, 
when  the  international  process  of  enforcing  the  execution  of  International 
justice  by  Negotiation,  Treaties,  Reprisals,  or  War  comes  under  considera- 
tion. 

But,  irrespectively  of  any  such  means  of  enforcement,  the  law  must 
remain.  (6)  God  has  willed  the  society  of  States  as  he  has  willed  the 

(a)  Kant,  Rechtslehre,  s.  54,  req. — Warnkoenig  says,  with  much  force  and  truth, 
"  Nonne  ex  mutua  inter  sese  invicem  agnitione  inter  eas  quaedam  constituitur  so- 
cietas,  et  probantur  communes  justi  regulse  quae  verum  jus  efficiunt  ?  miscet  vir 
summus  (i.  e.  Kant)  juris  sanctionem  cum  justi  notione,  eaque  in  re  parum  sibi 
constans  esse  videtur." — Doctrina  Juris  Philosophica,  s.  147. 

Brown's  Philosophy  of  the  Human  Mind,  vol.  iv.  pp.  396-7-8. 

(b)  Kaltenborn,  Kritik  des  Volkerrechts,  has  a  very  good  chapter  on  this  head, 
entitled,  Die  Laugner  des  Volkerrechts,  kap.  vi.  p.  306  :  "  Mit  Recht  nennt  Stein  es 
einen  kahlen  und  trostlosen  Satz,  das  es  kein  Volkerrecht  geben  solle." — "  Stahl 


92  PHILLIMORE    ON    INTERNATIONAL    LAW. 

society  of  individuals.  The  dictates  of  the  conscience  of  both  may  be 
violated  on  earth  :  but  to  the  national,  as  to  the  individual  conscience, 
the  language  of  a  profound  philosopher  is  applicable  :  "  Had  it  strength 
as  it  had  right,  had  it  power  as  it  has  manifest  authority,  it  would  abso- 
lutely govern  the  world."(c) 

Thirdly,  most,  if  not  all,  civilized  countries  have  incorporated  into 
their  own  Municipal  Law  a  recognition  of  the  principles  of  International 
Law. 

The  United  States  of  North  America,  almost  contemporaneously  with 
the  assertion  of  their  independence,^)  and  the  new  Empire  of  Brazil,  in 
1820,  proclaimed  their  national  adherence  to  International  Law  :  in 
England  it  has  always  been  considered  as  a  part  of  the  law  of  the 
land.(e) 

r  *74  ~\  *Lastly,  it  may  be  observed  on  this  head,  that  the  History  of 
-I  the  World,  and  especially  of  modern  times,  has  been  but  incu- 
riously and  unprofitably  read  by  him,  who  has  not  perceived  the  certain 
nemesis  which  overtakes  the  transgressors  of  International  Justice ;  for  to 
take  but  one  instance — what  an  "  Iliad  of  woes"(/)  did  the  precedent  of 
the  first  partition  of  Poland  open  to  the  kingdoms  who  participated  in 
that  grievous  infraction  of  International  Law  !  The  Roman  law  nobly 
expresses  a  great  moral  truth  in  the  maxim — "  Jurisjurandi  contempta 
religio  satis  Deum  habet  ultorem."(<7)  The  commentary  of  a  wise  and 
learned  French  jurist  upon  these  words  is  remarkable,  and  may  not  in- 
aptly close  the  first  part  of  the  work :  "  Paroles  (he  says)  qu'on  peut 
appliquer  egalement  a  toute  infraction  des  Loix  naturelles.  La  justice 
de  1'Auteur  de  ces  Loix  n'est  pas  moins  armee  centre  ceux  qui  les  trans- 
gressent,  que  contre  les  violateurs  du  serment,  qui  n'ajoute  rien  a  1'obli- 
gation  de  les  observer,  ni  a  la  force  de  nos  engagements,  et  qui  ne  sert 
qu'a  nous  rappeler  le  souvenir  de  cette  justice  inexorable."(7t) 

(Rechtsphilosophie)  erkliirt,  nicht  alles  Recht  sei  erzwingbar,  unter  Anderemnicht 
das  Volkerrecht.  "\Venn  man  aber  nur  richtiger  und  allgemeiner  Weise  die  Erz- 
wingbarkeit  als  aussere  Realisirbarkeit  auffast,  so  ist  auch  das  Volkerrecht  erz- 
wingbar zu  nennen,"  pp.  307,  309,  n. 

(c)  Bishop  Butler  (Sermon  III.),  On  Human  Nature. 

"  Si  les  Loix  Naturelles  ont  assez  de  force  pour  re"gner  sur  les  Rois  meme  par  la 
crainte  de  1'auteur  de  ces  Loix,  elles  ne  regnent  pas  moins  entre  les  Rois  ou  cntre 
les  differentes  nations  comparers  les  unes  avec  les  autres.  Elles  sont  le  seul  appui 
ordinaire  de  ce  droit  qui  merite  proprement  le  nom  de  Droit  des  Gens;  c'est  a  dire, 
de  celui  qui  a  lieu  de  Royaume  aRoyaume  ou  d'Etat  a  Etat." — Institution  au  Droit 
Public,  xii.  t.  i.  498  ;  CEuvres  d'Aguesseau. 

d)  "  According  to  the  general  usages  of  Europe." — Kent,  Comm.  i.  p.  1. 

e)  Blackstone's  Commentaries  on  the  Laws  of  England,  book  iv.  c.  v. 
/)  Burke,  Letters  on  a  Regicide  peace. 

g)  Cod.  lib.  iv.  t.  i.  2,  De  Reb.  Cred.  et  de  Jurejurando  (Alexander  Ceverus). 

A)  D'Aguesseau,  Ib.  xiv.  t.  i.  p.  500.     See,  too.  p.  482. 

"  Auch  ist  di  Erzwingbarkeit  nict  der  einzige  Charakter  des  Rechts,  auch  nicht 
sein  wesentlichester — Dieser  besteht  vielmehr  darin,  das  es  Norm  und  Ordnung 
fur  alle  menschlichen  Gemein  verhaltnisse  in  alien  Sphiiren  und  Dimensionem  des 
privatan  und  des  Oflentlichen  Lebens,  mithin  auch  des  socialen  Verhaltnisses  der 
Volker  und  Staaten  untereinander  also  Volkerrecht  ist — Der  Zwang  geht  nun  aber 
von  Gemeinschaft  als  solcher  aus — Dies  ist  die  Ordnung  die  Aufrecht  erhalten  wer- 
den  soil — Das  Rechtsleben  ist  das  Gemeinleben,  u.  s.  w." — Kaltenborn,  310,  ib. 


PAET     THE     SECOND. 


*CHAPTER    I.  [*75] 

SUBJECTS   OP  INTERNATIONAL   LAW — STATES. 

LXIII.  States  are  the  proper,  primary,  and  immediate  subjects  of 
International  Law.  It  will  be  seen,  indeed,  that  questions  of  this  juris- 
prudence may  be  raised  in  matters  affecting  the  persons  and  property 
both  of  Private  Individuals  and  of  Sovereigns  and  Ambassadors — the 
representatives  of  States — and  of  public  officers  like  Consuls,  but  medi- 
ately and  indirectly,  and  in  so  far  only,  as  they  are  members,  or  repre- 
sentatives, or  public  officers  of  States.  Under  the  appellation  of  State 
are  included  all  the  possessions  of  a  Nation;  so  that  if  a  Nation  establish 
a  Colony,  however  distant  that  is  looked  upon  by  the  eye  of  the  Law  as 
a  part  of  the  State,  in  the  same  manner  as  a  province  or  city  belonging 
to  her  ancient  territory ;  and  therefore,  unless  by  the  policy  of  the  Mother 
State,  or  by  the  provisions  of  Treaty,  a  different  character  has  been  im- 
pressed upon  the  Colony,  the  Law  applicable  generally  to  the  territory 
of  the  State  is  applicable  to  the  Colony  or  Colonies  belonging  to  her: 
all  together  make  up  one  State,  and  are  to  be  treated  as  one  by  Inter- 
national Law.  (a) 

LXIV.  The  question  as  to  the  origin  of  States  belongs  rather  to  the 
province  of  Political  Philosophy  than  of  International  Jurisprudence. 
The  idea  that  any  descendant  of  *Adam  ever  existed  in  what  has  ,-  ^-^  -, 
been  falsely  called  a  state  of  nature,  that  is,  out  of  the  society  of  L 
his  fellow-men,  has  been  long  ago  demonstrated  to  be  equally  inconsistent 
with  reason  and  experience.  The  occasions,  however,  which  led  to  the  first 
formation  of  the  particular  society,  of  which  each  man  is  a  member,  may 
be  of  various  kinds.  That  society  may  have  been  created  by  the  division 
of  a  great  empire  into  several  kingdoms,  whether  by  force  of  arms  or  by 
mutual  consent;  thus  the  empires  of  Alexander,  of  Charlemagne,  and  of 
Charles  V.  were  distributed,  among  their  successors,  into  separate  king- 
doms. It  may  have  been  founded  by  an  accidental  concourse  of  indi- 
viduals abandoning  another  country,  according  to  the  classical  legend  of 

(a)  Vattel,  lib.  i.  c.xviii.  s.  210 :  "  Tout  ce  qui  est  dit  du  territoire  d'une  Nation, 
doit  s'entendre  aussi  de  ses  Colonies." 


94  PHILLTMORE    ON     INTERNATIONAL    LAW. 

Antenor(J)  and  the  story  of  the  fugitives  from  the  oppression  of  Attila, 
to  which  Venice(c)  was  said  to  owe  her  origin,  or  it  may  have  been 
formed  by  the  separation  of  a  province  from  the  community  of  which  it 
was  formerly  an  integral  part,  and  by  its  establishment  as  an  independent 
nation. (d)  In  all  the  foregoing  ways,  "novus  populus  sui  juris  nasci- 
r*77T  *ur-"(e)  The  last  instance  will  be  *more  particularly  considered 
L  -I  in  another  part  of  this  work,  when  the  doctrine  of  Recognition 
comes  under  discussion. 

LXV.  But  for  all  purposes  of  International  Law,  a  State  (i^as, 
civitas,  Volk}  may  be  defined  to  be,  a  people  permanently  occupying  a 
fixed  territory  (certam  sedem),  bound  together  by  common  laws,  habits, 
and  customs  into  one  body  politic,  exercising,  through  the  medium  of 
an  organized  Government,  independent  sovereignty  and  control  over  all 
persons  and  things  within  its  boundaries,  capable  of  making  war  and 
peace,  and  of  entering  into  all  International  relations  with  the  other 
communities  of  the  globe.  It  is  a  sound  general  principle,  and  one  to 
be  laid  down  at  the  threshold  of  the  science  of  which  we  are  treating, 
that  International  Law  has  no  concern  with  the  form,  character,  or  power 
of  the  constitution  or  government(/)  of  a  State,  with  the  religion  of  its 
inhabitants,  the  extent  of  its  domain,  or  the  importance  of  its  position 
and  influence  in  the  commonwealth  of  nations.  "Russia  and  Geneva 
have  equal  rights  '"(g)  "  Une  petite  Republique  n'est  pas  moins  un  Etat 

(£>)  "  Anterior  potuit  mediis  elapsus  activis, 

Illyricos  penetrare  sinus,  atque  intima  tutus 
Regna  Liburnorum,  et  fontem  superare  Timavi : 
****** 

Hie  tamen  ille  urbem  Patavi  sedesque  locavit 

Teucrorum,  et  genti  nomen  dedit,  armaque  fixit 

Troia."—  uEn.  i.  242—249. 

(c)  Gibbon,  Decline  and  Fall  of  the  Roman  Empire,  vol.  vi.  c.  xxxv.  119 — 121. 

(d)  Vattel,  lib.  i.  c.  xviii.  s.  206;  Rutherforth,  b.  ii.  c.  ii.  s.  5,  p.  1259;  Kliiber, 
pt.  i.  c.  i. ;  Wheaton's  Elements,  vol.  i.  p.  91. 

(e)  Grotius,  lib.  ii.  c.  x.  p.  327. 

"  Concilia  coetusque  hominum  jure  sociati  quae  civitates  appellantur." — Cicero, 
Somn.  Scip.  iii. 

"Quid  est  enim  civitas  nisi  juris  societas." — De  Rep.  lib.  i.  32. 

"  Est  igitur,  inquit  Africaaus,  respublica  res  populi,  populus  autem,  non  omnis 
hominum  ccetus,  quoquo  modo  congregatus,  sed  ccetus,  multitudinis  juris  consensu 
et  utilitatis  communione  sociatus. — Ib.  lib.  i.  25. 

"  Consociatio  juris  atque  imperil." — Grotius,  De  J.  B.  et  P.  lib.  ii.  c.  ix.  s.  8,  p. 
326. 

"'O  6'xXoj  (&m)  -rr\rj9os  d6pio-rov,  7rX»j(?oj  avyKtXVjjLtvoV)  n\fjdo;  dtrvvaKrov — ov  yap  dlov  b 
Xopd; ,  ov6i  ailov  b  (Jf?//oj '  5  piv  yap  6fjfji.6;  tort  nXrjdo;  trvvfeApsvov^  b  Se  dxXoj  dietnracrncvov," — 

Plato,  Proclus  in  Alcib.  lib.  xviii. 

"'Q.(nrep  yap  oiiSc  CK  TOM  TVXOVTOS  TrXfjflvj  iroXij  yiyveTcu." — Arist.  Polit.  V.  3,  10. 

"  Facultas  ergo  moralis  civitatem  gubernandi,  quae  potestatis  civilis  vocabulo 
nuncupari  solet  a  Thucydide,  tribus  rebus  describitur,  cum  civitatem,  quas  ver6 
civitas  sit ;  vocat,  aiiTovopov,  avroSiKov,  auroreX^  (lib.  v.  18),  suis  utentum  legibus, 
judiciis,  magistratibus." — Grotius,  lib.  i.  c.  iii.  s.  6. 

Grotius  observes  (lib.  ii.  c.  xviii.  s.  2)  most  truly,  "  Qui  autem  externi  habendi 
sint,  ita  clare  exposuit  Virgilius  ut  nemo  jurisconsultorum  possit  clarius  : 
'  Omnem  equidem  sceptris  terrain  quae  libera  nostris 
Dissidet,  externam  reor.'  " — J5n.  369,  370. 

(/)  Vattel,  liv.  i.  c.  i.  s.  4 :  "  Toute  nation  qui  se  gouverne  elleme'me  sous  quel- 
que  forme  que  ce  soit,  sans  de"pendance  d'aucun  Stranger,  est  un  Etat  Souverain." 
The  words  "  sans  d^pendance"  are,  it  will  be  seen,  too  lax. 

(ff)  Judgment  of  Chief  Justice  Marshall,  in  the  case  of  The  Antilope,  Wheaton's 


SUBJECTS     OF     INTERNATIONAL    LAW — STATES.         95 

souverain  que  *le  plus  puissant  royaume."(7i)  Provided  that  r^-ro-i 
the  State  possess  a  Government,  capable  of  securing  at  home  "-  -" 
the  observance  of  rightful  relations  with  other  States,  the  demands  of 
International  Law  are  satisfied. 

LXVI.  If  the  foregoing  definition  be  considered  in  detail,  it  will  be 
found  to  exclude  from  the  legal  category  of  a  State  the  following  aggre- 
gates of  individuals :  (1.)  All  hordes  or  bands  of  men  recently  associated 
together,  newly  arrived  at  or  occupying  any  previously  uninhabited  tract 
or  country,  though  it  may  be  possible  that  such  horde  or  band  may,  in 
course  of  time,  change  its  character,  and  ripen  into  a  body  politic,  and 
have  a  claim  to  be  recognised  as  such.  "Est  autem  civitas,"  Grotius 
says,(i')  "  costus  perfectus  liberoruin  hominum,  juris  fruendi,  etcommunis 
utilitatis  causa  sociatus;"  and  in  another  place,  defining  the  character  of 
sovereignty,  "Summa  astern  ilia  dicitur  (i.  e.  potestas  civilis)  cujus 
actus  alterius  juri  non  subsunt,  ita  ut  alterius  voluntatis  humanae  arbitrio 

irriti  possint  reddi summae  potestatis  subjectum  commune  est 

civitas  quam  perfectum  ccetum  esse  supra  discimus."(&)  (2.)  All  mi- 
gratory hordes  not  occupying  a  fixed  or  certain  seat — and  all  associations 
of  men  united  for  the  accomplishment  of  immoral  ends  (sceleris  causa}j 
such  as  piratical  hordes,  although  they  may  have  a  fixed  abode,  and  call 
themselves  by  the  name  of  States.  The  Malay  and  Sooloo  pirates  of 
Borneo  and  the  Eastern  Archipelago  furnish  an  existing  example  of  such 
societies. (?)  "Populus  autem,"  Cicero  says,  in  a  definition  copied  by 
most  jurists,  "non  omnis  hominum  coetus,  "quoquo  modo  congregatus, 
sed  coetus  multitudinis  juris  *consensu  et  utilitatis  communione 
sociatus;7'(m)  and  in  another  place,  "Nequeesset  unum  vinculum 
juris,  nee  consensus  ac  societas  coetus,  quod  est  populus."  (n\ 

LXVII.  With  respect  to  societies  united  sceleris  causd,  the  philoso- 
phers and  jurists  of  antiquity  are  in  perfect  accordance  with  those  of 
modern  times.  All  agree  to  class  such  bodies  amongst  those  of  whose 
corporate  existence  the  law  takes  no  cognizance  (gui  civitatem  nonfaci- 
unt,}  and  therefore  as  not  entitled  to  any  International  Rights  either  in 
peace  or  "War.  The  question  has  generally  been  raised  in  time  of  war 
as  to  when  a  state  should  be  considered  a  legitimate  enemy  (hostis,}  and 
when  as  a  lawless  freebooter  (pirata  latro\.(p\  It  is  not,  however,  because 
a  nation  commits  a  piratical  act,  or  is  guilty  of  the  violation  of  Interna- 
tional Rights,  that  it  is  to  be  considered  as  wholly  without  the  pale  of  a 
State.  The  ancient  Greeks,  we  learn  from  Homer  and  Thucydides, 
practised  rapine  and  piracy,  and  considered  these  exploits  rather  glo- 
rious than  shameful.  The  Normans,  the  original  discoverers  of  Ame- 

Reports  (American),  vol.  x.  p.  66  j  Wheaton's  History  of  the  Modern  Law  of 
Nations,  p.  637. 

(h)  Vattel,  Prelim,  s.  18,  Egalite  des  Nations ;  and  s.  19,  "  Par  une  suite  neces- 
saire  de  cette  e'galite',  ce  qui  est  permis  a  une  nation  Test  aussi  a  toute  autre,  et  ce 
qui  n'cst  pas  permis  a  Tune,  n'est  pas  non  plus  a  1'autre." 

(i)  De  J.  B.  et  P.  lib.  i.  c.  i.  s.  14.  (k)  Ib.  c.  iii.  s.  7. 

(1)  Serhassan  Pirates,  2  Robinson,  Jun.,  Adm.  Rep.  pp.  354 — 358  ;  The  Illeanon 
Pirates,  Queen  v.  Belcher,  6  Moore's  Privy  Council  Rep.  pp.  471 — 484. 

(m)  De  Rep.  lib.  i.  25.  (n)  De  Rep.  lib.  iii.  31. 

(o)  Grotius,  De  J.  B.  et  P.  lib.  iii.  c.  iii.  ss.  1,  2  :  "Distinctio  populi,  quamvis 
injuste  agentis,  a  piratis  et  latronibus." 


96  PHILLIMORE    ON    INTERNATIONAL    LAW. 

rica,  who  swept  the  seas  with  their  victorious  gallies,  and  subverted  and 
founded  kingdoms  by  the  prowess  of  their  individual  subjects,  dealt,  it 
is  said,  with  the  ships  which  they  encountered  on  the  high  seas  as  their 
legitimate  prey.(p)  The  ancient  Greeks  and  Normans,  however,  were 
r  *8fn  no*  P^ra^es  in  *he  legal  sense  of  the  term.  Their  *society  was 
-1  formed  for  civil  and  moral  objects,  not  for  plunder;  and  their 
acts  of  violence  sprung  from  a  confusion,  incident  to  a  barbarous  age,  in 
the  principles  of  right  and  wrong,  and  the  laws  of  war  and  peace. 

Pompey  was  allowed  the  honour  of  a  triumph  for  his  victory  over  the 
Illyrians,  who  certainly  exercised  indiscriminate  hostilities  against  the 
ships  of  all  counties,  but  they  were  considered  a  "gens,"  and  as  having 
"justum  imperium."  He  did  not  receive  the  same  distinction  for  his 
destruction  of  the  pirates  who  infested  the  Mediterranean  :  "Tantum 
discrimen,"  Grotius  observes,^)  "  est  inter  populum  quantumvis  scele- 
ratum,  et  inter  eos,  qui,  cum  populus  non  sint,  sceleris  causa,  coeunt." 

In  the  time  of  Charles  the  Second  of  England,  Molloy  wrote  as  fol- 
lows :  "  Pirates  that  have  reduced  themselves  into  a  government  or 
state,  as  those  of  Algiers,  Salley,  Tripoli,  Tunis,  and  the  like,  some  do 
conceive  ought  not  to  obtain  the  rights  and  solemnities  of  war,  as  other 
towns  or  places ;  for  though  they  acknowledge  the  supremacy  of  the 
Porte,  yet  all  the  power  of  it  cannot  impose  on  them  more  than  their 
own  wills  voluntarily  consent  to."  He  there  mentions  that  Louis  IX. 
treated  them  as  a  nest  of  wasps,(r)  and  unworthy  of  the  rights  of  civil- 
ized war ;  "  notwithstanding,"  he  adds,  "  this  Tunis  and  Tripoli,  and 
their  sister  Algiers,  do  at  this  day  (though  nests  of  pirates)  obtain  the 
rights  of  legation  :  so  that  now  (though  indeed  pirates,)  yet  having 
acquired  the  reputation  of  a  government,  they  cannot  properly  be 
esteemed  pirates,  but  enemies."(s)  Bynkershoek,(<)  some  years  after- 
wards  expressed  yet  more  strongly  *the  same  opinion.  And 
in  the  year  1801,  Lord  Stowell  fully  adopted  this  position,  and 
asserted  that  the  African  States  had  long  ago  acquired  the  character  of 
established  governments,  with  whom  we  have  regular  treaties  acknow- 

(p)  Thucyd.  i.  5  :  "'Oi  yap  "EXXijvej  TO  Trd\iv  ....  irpdirovTO  irpdf  \^gre.iav  ....  xal 
j'jpjra^ov  ....  OVK  exovrCf  TTW  ala\vvr]V  TOVTOV  roij  1'pyou,  (j>cpovres  Si  rt  KOI  i6^rj;  //aXXoy.— 
Arist.  Pol.  v.  2,  3  ;  Horn.  Od.  iii.  73  ;  ix.  252  ;  Herod,  ii.  152  ;  iii.  39,47  ;  Thucyd. 
vi.  4  ;  Appollod.  i.  9,  18.  Liv.  v.  28  :  "  Haud  procul  freto  Siculoa  piratis  Liparen- 
sium  excepti,  devehunter  Liparas.  Mos  erat  civitatis,  velut  publico  latrocinio  par- 
tarn  praadam  dividere." 

Lord  Clarendon's  account  of  the  Privateers  of  Ostend,  by  whom  he  was  taken 
prisoner,  puts  them  pretty  much  upon  the  same  level  as  the  classical  Freebooters. 
See  Clarendon's  Life  (8vo  ed.),  p.  208  :  "  All  the  ships,  though  they  had  the  king 
of  Spain's  commission,  were  freebooters,  belonging  to  private  owners,  who  observed 
no  rules  or  laws  of  nations."  See,  too,  p.  212. 

(q)  Lib.  iii.  c.  iii.  s.  2. 

(r)  "Bugia  ed  Algieri  infami  nidi  di  corsari." — Tasso. 

(*)  Molloy,  s.  4,  p.  33. 

(t)  "  Quod  autem  Albericus  Gentilis  (Advoc.  Hispan.  1.  i.  c.  xv.  (aliique  eos  qui 
Barbari  in  Africa  vocantur,  jure  Piratarum  censent,  et  eorum  occupatione  dominium 
mutari  negant,  nulla  ratione  defendi  potent — Algerienses,  Tripolitoni,  Tunitani, 
Zaleenses  piratse  non :  sunt,  sed  civitates,  quse  certam  sedem,  atque  ibi  imperium 
et  quibuscum  habent,  nunc  pax  est  nunc  bellum,  non  secus  ac  cum  aliis  Gentibus, 
quique  propterea  ceterorum  Principum  jure  esse  videntur." — Bynkershoek,  Quaest. 
J.  P.  b.  i.  c.  17. 


SUBJECTS    OF     INTERNATIONAL    LAW  —  STATES.       97 

ledging  and  confirming  to  them  the  relations  of  legal  communities  ;(M) 
and  he  remarked  that,  although  their  notions  of  International  justice 
differ  from  those  which  we  entertain,  we  do  not  on  that  account  venture 
to  call  in  question  their  public  acts — that  is  to  say,  that  although  they  are 
perhaps  in  some  some  points  entitled  to  a  relaxed  application  of  the  prin- 
ciples of  International  Law,  derived  exclusively  from  European  custom, 
they  are  nevertheless  treated  as  having  the  rights  and  duties  of  states 
by  the  civilized  world. (x) 

*These  observations  were  always  applicable  in  some  degree  to  .-  ^^  -\ 
the  relations  of  the  Ottoman  Porte  itself  with  other  Govern-  L 
ments.  The  Ottoman  Empire  extends,  whether  in  Asia,  Africa,  or 
Europe,  over  a  vast  variety  of  distinct  nations  and  separate  races. 
Hardly  have  those  separate  races  which  profess  the  Mahometan  religion 
coalesced  into  one  natiofa.  But  the  Christian  whether  of  the  Greek  or 
the  Roman  Catholic  Faith,  has  never  entirely  lost  those  distinctions  of 
origin,  manners,  institutions,  and,  above  all,  of  religion,  which  eternally 
separate  him  from  the  Turk.  These  distinctions  have  always  been  and 
must  always  be  indelible.  The  Mahometan  and  the  Christian  may  live 
under  the  same  government, (y)  but  they  will  remain  distinct  nations. 
The  two  streams  are  immiscible  in  their  character,  and  will  never  "  flow 
the  same." 

For  some  time  after  the  conquest  of  Constantinople  (1453)  grave 
doubts  were  entertained  by  the  nations  of  Christendom  as  to  the  lawful- 
ness of  any  pacific  intercourse  with  the  Sultan.  It  was  not  until  after 
the  Treaty  of  Constantinople  in  1720,  that  the  Russian  Minister  was  per- 
mitted to  reside  at  Constantinople ;  and  direct  relations  between  Roman 
Catholic  Sovereigns  and  the  Porte  can  scarcely  be  said  to  have  any  ear- 
lier date  than  the  end  of  the  eighteenth  century.  (2)  Even  after  the 

(M)  The  Helena,  4  Eob.  Adm.  Rep.  p.  5.  Life  of  Sir  Lionel  Jenkins,  vol.  ii.  p. 
794. 

(z)  It  is  well  known  that,  for  some  time,  the  lawfulness  of  any  dealings,  much 
more  any  treaty,  between  the  Christian  and  the  Turk  was  denied.  Albericus  Gen- 
tilis  discusses  (De  Jure  Belli,  lib.  iii.  c.  xix.),  "  Si  fcedus  recte  contrahitur  cum 
diversae  religionis  hominibus,  quaestio  partim  theologalis,  partim  civilis."  He 
treats  it  however,  for  the  most  part,  theologically,  and  arrives  at  the  conclusions 
that  commerce  is  lawful  between  Christian  and  Heathen  States,  but  not  in  alliance 
against  another  Heathen  State ;  and  a  fortiori,  not  against  another  Christian  State. 
Nevertheless,  in  a  former  chapter,  he  had  said,  with  a  liberality  scarcely  known 
to  th&  age  in  which  he  lived,  "  Religionis  jus  hominibus  cum  hominibus  proprie 
non  est :  itaque  nee  jus  laeditur  hominum  ob  diversam  religiouem ;  itaque,  nee 
bellum  causa  religionis.  Religio  erga  Deum  est ;  jus  est  divinum,  id  est,  inter 
Deum  et  hominem;  non  est  jus  humanum,  id  est,  inter  hominem  et  hominem : 
nihil  igitur  quseritat  homo  violatam  sibi  ob  aliam  religionem." — Lib.  i.  c.  ix. 

Grotius,  De  J.  B.  et  P.  lib.  ii.  c.  xv.  8 — 12  :  "  De  fcederibus  frequens  est  quaestio, 
licitene  ineantur  cum  his  qui  a  vera  religione  alieni  sunt :  quae  res  in  jure  naturae 
dubitationem  non  habet ;  nan  id  jus  ita  omnibus  hominibus  commune  est,  ut  re- 
ligionis discrimen  non  admittat.  Sed  de  jure  divino  quaeritur." 

Lord  Coke  said  there  were  four  kinds  of  Leagues  :  1st,  Fcedus  Pacts  ;  2nd,  Fcedus 
Congratulationis  ;  3rd,  Fcedus  Commutationis  Mercium :  these  three  might  exist  be- 
tween a  Christian  and  an  Infidel  State,  but  the  4th  Fcedus  Mutui  Auxilii  could 
not. — 4th  Instit.  155. 

Ward's  Law  of  Nations,  ii.  321  (Of  Treaties  with  Powers  not  Christian). 

(y)  See  Lord  Stowell's  Judgment  on  The  Indian  Chief,  3  Robinson's  Admiralty 
Reports,  p.  29. 

(z)  2  Miltitz,  Manuel  des  Consuls,  p.  1571. 


98  PHILLIMORE    ON    INTERNATIONAL    LAW. 

lapse  of  nearly  four  centuries,  at  the  Congress  of  Vienna,  1815,  the 
Ottoman  Empire  was  not  represented,  nor  was  it  included  in  the  provi- 
sions of  positive  public  law  contained  in  the  Treaty  which  was  the  result 
of  the  Congress.  Nevertheless,  the  International  intercourse  between 
the  Sultan  and  other  Powers  was  then,  and  had  been  for  a  long  time, 
upon  a  much  stricter  footing  of  legality,  than  had  subsisted  between  those 
powers  and  the  African  or  Barbary  States. 

Long  before  the  Treaty  of  Vienna  (1815)  the  crescent  had  ceased  to  be 
an  objecK  of  terror  to  Christendom  ;  and  a  principle  of  International 
r  *83  1  P°l'cy  'with  respect  to  the  Ottoman  Power,  *directly  the  reverse 
-1  of  that  which  had  formerly  prevailed,  had  taken  root  in  Europe 
— namely,  the  principle  that  the  preservation  and  independence  of  the 
Ottoman  Power  was  necessary  for  the  safety  of  European  Communi- 
ties, (a) 

LXVIII.  The  Treaties  affecting  the  relations  of  Russia  with  the  Porte 
are  the  following : — 

Adrinople    .......  1681 

Carlowitz    .       V;      "."       -.         .        .         .  1699 

Constantinople     .         .       ; .         .         .         .  1700 

Constantinople     .         .         ;'      '  .         .         .  1709 
Peace  of  Pruth    .         .        .         .         .         .  1711 

Constantinople     •      '•".         .         ;         .         .1712 
Adrinople   •         .     - ;:'"       ."         .         .         .  1713 
Constantinople     .     '    .  '      ;         ...         •  1720 
(By  this  treaty  a  Russian  Minister  was  per- 
mitted to  reside  at  Constantinople. 
Belgrade     .         .         .         .         .         .         .  1739 

Kaynardgi  :         .         .'       ..         .         .  1774 

Explained  .         .         .         .     "  »'•       .        .  1779 

Constantinople  ,        1783-4 

Szistowe,  Grallacz,  Yassy       .        .        .    1790-1-2 
Constantinople     .         .  .         .         .  1809 

Bucharest   .         .     •   .         .         .         :         .  1812 
Ackerman  .        ',  "      .         .         .         .         .  1826 

Adrinople  .         ,_       ,         .         ,         .         .  1829 
Unkiar  Skeles&i  .         .         .         .         .         .  1833 

London       .1         .         .         .   .     ,         .  1840 

Dardanelles          .         .         .         .         . .       .1841 

Balta  Liman        .         ,        .         .        .         .  1846 

Balta  Liman        .         .         .         .         .         .  1849 

LXIX.  But  the  general  Treaties  between  the  Ottoman  Porte  and  the 
European  States  appear  to  be  best  arranged  as  follows  : — 

1.  From  the  conquest  of  Constantinople  to  the  Treaty  of  Carlowitz,  1699- 

2.  From  the  Treaty  of  Carlowitz,  1699,  to  the  Treaty  of  Belgrade,  1739. 

3.  From  the  Treaty  of  Belgrade,  1739,  to  the  Treaty  of  Bucharest,  1812. 

(a)  The  question  of  the  Religious  Protectorate  claimed  by  Christian  Powers 
with  respect  to  the  Christian  subjects  of  the  Sultan,  both  in  Europe  and  Asia,  will 
be  discussed  hereafter. 


SUBJECTS    OF     INTERNATIONAL     LAW STATES.      99 

4.  From  the  Treaty  of  Bucharest,  1812,  to  the  Treaty  of  the  Dardanelles 

in  1841. 

5.  From  the  Treaty  of  the  Dardanelles,  1841,  to  the  present  time. 

*LXX.  By  the  Treaty  of  Vienna  in  1731,  Great  Britain 
made  common  cause  with  Austria  against  every  enemy  but  the 
Turk.(i) 

The  Peace  of  Szistowe,  (1791,)  between  Austria  and  the  Porte,  and 
the  Peace  of  Jassy,  (1792,)  between  Russia  and  the  Porte,  were  con- 
cluded under  the  mediation  of  the  triple  alliance  of  Great  Britain,  Prussia, 
and  Holland. 

In  1798,  when  Napoleon  invaded  Egypt,  Russia  and  the  Porte  con- 
cluded an  alliance  confirming  the  Treaty  of  Jassy,  and  mutually  guaran- 
teeing the  integrity  of  their  dominions.  To  this  Treaty  Great  Britain 
acceded  in  1799:  it  expired  in  1806,  and  was  renewed  in  1809  by  the 
Treaty  of  Constantinople,  by  the  eleventh  article  of  which  Great  Britain 
acknowledged  that  the  strait  of  the  Dardanelles  was  mare  clausum  under 
the  dominion  of  the  Porte. 

The  Treaty  of  Bucharest,  in  1812,  put  an  end  to  the  hostilities  which 
had  raged  between  Russia  and  the  Porte  since  1809.  This  Treaty  greatly 
advanced  the  boundary  of  Russia.  It  contained  stipulations  confirming 
those  of  former  Treaties  in  favour  of  the  national  privileges  of  Moldavia 
and  Wallachia,  and  it  contained  some  conditions  in  favour  of  the  Chris- 
tian Servians,  which,  in  1813,  were  violated  with  circumstances  of  great 
barbarity ;  but  the  Servians  applied  in  vain  to  the  Congress  of  Vienna 
for  mediation  or  succour. 

In  1819  the  Porte  recognized  the  Protectorate  of  Great  Britain  over 
the  Ionian  Islands,  (c) 

(b)  Mably,  Droit  Public  de  1'Europe,  ii.  226. 

(c)  Marten's  Nouv.  Rec.  de  Traite"s,  xiii.  (5  Supp.)  386.     The  Treaty"contain- 
ing  this  recognition  sets  forth  the  titles  of  the  Sultan,  and  the  style  of  the  Forte's 
negotiations  with  Christian  States  :  "  Nous,  par  la  grace  du  Souverain  maitre  des 
empires  et  du  fondateur  immuable  de  1'edifice  solide  du  califat,  par  1'influence 
merveilleuse  dulmodele  des  saints,  du  soleil  des  duexmondes,  notre  grande  prophete 
Mahomet  Mustapha,  ainsi  que  par  a  cooperation  de  ses  disciples  et  successeurs,  et 
de  toutela  suite  des  saints,  sultan,  fils  de  sultan,  empereur,  fils  d'empereur,  Mahmoud- 
Han,  vainquer,  fils  d' Ahmed-Han,  vainquer,  dont  les  nobles  dip!6mes  sont  de"core"s 
du  titre  souverain  de  sultan  des  deux  hemispheres ;  dont  les  ordonnances  portent 
le  nom  e"clatant  d'empereur  des  duex  mers,  et  dont  les  devoirs  attache's  a  notre 
dignite"  impe"riale  consistant  dans  1'administration  de  la  justice,  les  soins  d'un  bon 
gouvernement,  et  1'assuran  cede  la  tranquillity  denos  peuples  ;  seigneur  et  gardien 
des  plus  nobles  villes  du  monde,  vers  lesquelles  se  dirigent  les  vceux  de  tous  les 
peuples,  des  duex  saintes  villes  de  la  Mecque  et  de  Me"dine,  du  sanctuaire  interieur 
du  pays  saint ;  calife  supreme  des  contre"es  et  provinces  situe"es  dans  1' Anatolic  et 
la  Rome'lie,  sur  la  mer  Noire  et  sur  la  mer  Blanche,  dans  1'Arabie  et  la  Chald6e; 
enfin,  glorieux  souverain  denombreuses  forteresses,  chateaux,  places  et  villes,  nous 
declarons : — 

"  Que,  vu  la  parfaite  union  et  1'e'ternelle  amitie*  qui  regnent  entre  notre  Sublime 
Porte,  d'e*ternelle  dure"e,  et  le  plus  glorieux  de  tous  les  grands  princes  qui  croient 
en  Je"sus  Christ,  le  modele  de  tous  les  personnages  d'un  rang  e'leve'  de  la  nation  du 
Messie,  le  me"diateur  des  intents  politiques  des  peuples,  revfitu  des  ornemens  de  la 
majeste"  et  de  la  glorie,  et  convert  des  marques  de  la  grandeur  et  de  la  c^iebrite", 
Sa  Majeste,  notre  tres-estimable,  ancien,  intimd,  sincere,  et  constant  ami,  le  roi 
(padischah)  des  royaumes  unis  d'Angleterre,  d'Ecosse,  et  d'Irlande,  et  d'une 
grande  partie  des  pays  qui  en  dependent,  George  III.  (dont  la  fin  puisse  etre 
heureuse !) 


100  PHILLIMORE     ON    INTERNATIONAL     LAW. 

f  *8^  1      *^n  1828  ^e  C""rea*i  Powers  interfered  with  the  Porte  on  behalf 
J  of  the  Greeks,  whose  independence  they  established  after  the 
battle  of  Navarino. 

In  1829  the  Treaty  of  Adrianople  was  concluded  between  Russia  and 
the  Porte,  by  which  the  power  of  the  latter  was  much  increased,  espe- 
cially with  regard  to  the  mouths  of  the  Danube,  in  a  manner  scarcely 
consistent  with  the  Public  Law  of  Europe,  (d)  In  1833,  the  Treaty  of 
Unkiar  Skelessi  was  concluded  between  Russia  and  the  Porte,  the  avowed 
object  of  which  was  to  protect  the  Porte  against  the  rebellion  of  the  Pasha 
of  Egypt.  The  casus  fcederis  contemplated  by  this  Treaty  having  arisen, 
the  other  European  Powers  interposed,  on  the  double  ground  of  protect- 
ing the  Porte  against  Egypt,  and  of  preventing  the  protectorate  of  the 
Porte  from  being  exclusively  vested  in  and  exercised  by  Russia. 

A  convention  between  all  the  European  Powers,  except  France,  took 
r  #Q«  i  P^ce  in  London,  July  15,  1840,  for  the  pacification  of  the  East, 
L  J  to  which  the  Porte  also  was  a  party.  *The  maintenance  of  the 
integrity  and  independence  of  the  Ottoman  empire  as  a  security  for  the 
Peace  of  Europe  was  the  avowed  principle  of  this  convention. 

The  language  of  the  preamble  of  the  Treaty  is  as  follows  : 
"In  the  name  of  the  most  merciful  God." 

"His  highness  the  Sultan  having  addressed  himself  to  their  majesties 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  the 
Emperor  of  Austria,  King  of  Hungary  and  Bohemia,  the  King  of  Prus- 
sia, and  the  Emperor  of  all  the  Russias,  to  ask  their  support  and  assist- 
ance in  the  difficulties  in  which  he  finds  himself  placed  by  reason  of  the 
hostile  proceedings  of  Mehemet  Ali,  Pacha  of  Egypt ; — difficulties  which 
threaten  with  danger  the  integrity  of  the  Ottoman  empire,  and  the  inde- 
pendence of  the  Sultan's  throne;  their  said  majesties,  moved  by  the  sin- 
cere friendship  which  subsists  between  them  and  the  Sultan ;  animated 
by  the  desire  of  maintaining  the  integrity  and  independence  of  the  Otto- 
man empire  as  a  security  for  the  peace  of  Europe ;  faithful  to  the  en- 
gagement which  they  contracted  by  the  collective  note  presented  to  the 
Porte  by  their  representatives  at  Constantinople,  on  the  27th  of  July, 
1839;  and  desirous,  moreover,  to  prevent  the  effusion  of  blood,  which 
would  be  occasioned  by  a  continuance  of  the  hostilities  which  have  recently 
broken  out  in  Syria  between  the  authorities  of  the  Pacha  of  Egypt  and 
the  subjects  of  the  Sultan;  their  said  majesties  and  his  highness  the 
Sultan  have  resolved,  for  the  aforesaid  purposes,  to  conclude  together  a 
Convention."(e) 

By  the  Treaty  of  the  Dardanelles  (July  10th,  1841)  the  five  great  Eu- 
ropean Powers  admitted  the  exclusive  authority  of  the  Porte  over  these 
straits,  and  incorporated  this  principle  of  Law  into  the  written  Law  (jus 
pacticium)  of  Europe.  (/) 

Some  of  these  Treaties,  and  the  events  which  led  to  them,  will  be 

"  L'une  et  Tauter  cour  ont  le  de*sir  et  1'intention  la  plus  sincere  d'affermir  les 
bases  de  leur  amiti6,  et  de  resserrer  de  plus  en  plus  les  liens  de  la  bonne  intelli- 
gence et  de  rintimite'  qui  les  unit." 

(d)  Vide  post.  (e)  Hertslet's  Treatise,  T.  p.  544. 

(/)  Wheaton's  Hist.  289,  556—585. 


DIFFERENT     KINDS     OF     STATES.  101 

noticed  more  at  length  hereafter.     But  it  is  clear,  *even  from  this  r  #87  -, 
slight  and  cursory  notice,  that  the  Porte  must  now  be  considered  L 
as  subject,  with  only  such  exceptions  as  the  reason  of  the  thing  may  dic- 
tate, not  only  to  the  principles  of  general  International  Law,  but  to  the 
particular  provisions  of  the  European  Code.(#) 


*CHAPTER  II.  [*88] 

DIFFERENT   KINDS   OF   STATES. 

LXXI.  HAVING  considered  the  general  attributes  and  characteristics 
required  by  International  Law  for  the  constitution  of  a  State,  it  becomes 
necessary  to  apply  these*  tests  to  the  different  forms  of  States  which  are 
found  to  exist,  in  order  to  fix  the  position  of  each  in  the  Commonwealth 
of  Nations.  This  part  of  the  subject  appears  to  admit  of  the  following 
principal  division  : — 

First.  One  or  more  States  under  One  Sovereign. 

Secondly.  Several  States  under  a  Federal  Union. 

LXXII.  I. — As  to  one  or  more  States  under  one  Sovereign.  It  is 
proposed  to  consider  this  first  branch  of  the  principal  division  under  the 
following  heads : — 

1.  Single  States,  under  one  Sovereign. 

2.  Several  States  perpetually  united  (reali  unione)  under  one  Sove- 
reign. 

3.  The  peculiar  case  of  Poland. 

4.  Several  States  temporarily  united  under  one  Sovereign  (personali 
unione\. 

5.  A  State  under  the  Protectorate  of  another,  or  of  others,  but  retain- 
ing its  International  personality. 

6.  A  State  under  such  Protectorate  so  as  to  have  forfeited  its  Inter- 
national personality — The  Ionian  Islands. 

7.  The  European  Free  Towns  or  Republics. 

8.  The  peculiar  case  of  Belgium. 

9.  The  peculiar  case  of  Greece. 

10.  States  paying  tribute,  as  standing  in  a  Feudal  relation  to  other 
States — The  Turkish  Provinces. 

11.  The  peculiar  case  of  Egypt. 

LXXIII.  First. — With  respect  to  a  Single  State,  under  one  Sovereign, 
like  Spain  or  Portugal  as  at  present  constituted,  *no  doubt  can  r  .,-Q  -, 
be  raised  as  to  such  a  State  being  the  proper  subject  of  Interna-  L 
tional  Law. 

LXXIV.  Secondly — Where  several    States,  perpetually  under   one 

(g]  Speech  of  the  Earl  of  Clarendon  (Secretary  of  State  for  Foreign  Affairs,)  in 
the  House  of  Lords,  April,  1853,  on  the  interference  of  the  Continental  powers  in 
the  relations  subsisting  between  the  Porte  and  Montenegro.  See  also  the  Debates 
in  both  Houses  of  Parliament  upon  the  subject  of  Russian  intervention  in  Turkey 
on  the  ground  of  an  alleged  religious  Protectorate  of  the  Greek  Church. — Han- 
sard's Parl.  Deb.  1853  ;  Koch.  iv.  349.  Vide  post,  chapter  on  "  Intervention." 


102  PHILLIMORE     ON     INTERNATIONAL     LAW. 

Sovereign  (rcali  unione\  have  retained  certain(a)  rights  and  privileges 
as  far  as  their  International  Relations  are  concerned,  but  have  lost  all 
separate  and  distinct  existence  as  far  as  their  External  Relations  are 
concerned,  they  are  not,  properly  and  strictly  speaking,  subjects  of  In- 
ternational Law — at  least,  they  can  only  be  so  mediately  and  indirectly, 
and  not  directly  and  immediately.  For  instance,  a  State  which  entered 
into  any  negotiations  with  Hungary,  Sicily,  or  Ireland  as  independent 
States  (even  while  they  possessed  a  separate  legislature)  would  be  guilty 
of  a  gross  violation  of  International  Law  towards  Austria,  Naples,  or 
Great  Britain. 

LXXV.  Thirdly. — The  particular  State  of  Poland  requires  a  distinct 
and  separate  consideration.  The  various  partitions  of  that  unhappy 
country  are  not  now  under  discussion ;  it  is  with  the  condition  of  Poland 
under  the  treaty  of  Vienna,  and  the  Russian  manifesto  of  1832,  that  we 
are  at  present  concerned.  The  union  established  between  Russia  and 
Poland  by  the  Congress  of  Vienna  was  of  an  wholly  anomalous  kind. 
By  the  first  act  of  that  Congress  the  Duchy  of  Warsaw,  with  the  excep- 
tion of  certain  districts,  was  united  to  the  Russian  Empire,  and  was  irre- 
vocably bound  by  its  constitution  to  belong  to  the  Emperor  of  Russia, 
and  his  heirs  in  all  perpetuity.  The  emperor  undertook  to  confer  on 
this  State,  which  was  to  be  under  a  separate  and  distinct  government, 
T  *QO  1  sucn  Powers  of  internal  administration  as  he  might  think  fit.  *The 
J  Emperor  was  to  take  the  title  of  King  of  Poland.  The  Poles, 
whether  subjects  of  Austria,  Prussia,  or  Russia,  were  to  obtain  represen- 
tative institutions,  regulated  according  to  the  manner  which  might  seem 
expedient  to  the  respective  governments.  In  conformity  with  these  stip- 
ulations, the  Emperor  Alexander  granted  a  constitutional  charter  to  the 
Kingdom  of  Poland,  November  15  (27),  1815.  This  charter  declared 
that  The  Kingdom  of  Poland  was  united  to  Russia  by  its  constitution — 
that  the  sovereign  authority  in  Poland  was  to  be  exercised  in  conformity 
therewith — that  the  coronation  of  the  King  of  Poland  was  to  take  place 
in  the  Polish  capital,  where  he  was  bound  to  take  an  oath  to  observe  the 
charter.  Poland  was  to  have  a  perpetual  representation,  composed  of 
the  king  and  the  two  chambers  forming  the  diet,  in  which  body  the  power 
of  legislation  and  taxation  was  to  be  vested.  A  distinct  Polish  army, 
coinage,  military  orders,  were  to  be  preserved  in  the  kingdom.  But  in 
1832,  the  Emperor  Nicholas  established  what  was  called  an  organic  sta- 
tute for  Poland,  the  principal  features  of  which  were,  that  the  Kingdom 
of  Poland  was  henceforth  to  be  perpetually  united  to,  and  form  an  inte- 
gral part  of,  the  Russian  Empire ;  the  Polish  diet  was  to  be  abolished ; 
the  Polish  army  absorbed  into  the  Russian ;  the  administration  of  Poland 

(a]  Grotius,  De  J.  B.  et  P.  lib.  i.  c.  iii.  s.  21 ;  lib.  ii.  c.  ix.  s.  9  :  "  Quod  si  quando 

uniantur  duo  populi  non  amittentur  jura  sed  communicabuntur Idemque 

censendum  est  de  regnis  quas  non  foedere,  aut  eo  duntaxat  quod  regem  communem 
habeant  sed  vera  unitate  junguntur." 

Vattel,  I.  liv.  i.  c.  i. 

Oppenheim,  System  des  Volkerrechts,  Zweiter,  Theil,  kap.  vi.  s.  4. 

Wheaton,  Elements  du  Droit  International,  p.  20. 

Kliiber,  Europaiscb.es  Volkerrecht  (ed.  1851),  Erster  Thiel,  kap.  i.  s.  27. 

Heffter  Europ.  Yolker,  s.  20. 


DIFFERENT    KINDS    OF     STATES. 

carried  on  under  a  Russian  Council  of  State,  called  the  Section  for  the 
Offices  of  Poland.  The  Government  of  England  and  France  protested 
against  this  act  as  a  violation  of  the  spirit,  if  not  of  the  letter  of  the 
Treaty  of  Vienna.(Z>)  It  seems,  however,  impossible  at  the  present  time 
to  consider  Poland  as  retaining  any  of  those  characteristics  which  would 
entitle  it  to  be  considered  as  an  independent  kingdom,  according  to  the 
principles  of  International  Law. 

LXXVI.  Fourthly. — In  the  cases  which  have  been  mentioned  the 
several  States  are  really  and  perpetually  (unione  reali}  united  under  one 
sovereign;  but  there  may  be  cases  in  *which  the  union  is  of  a  f  ^.^  -. 
personal  character  (unio  personalis\  depending  upon  the  contin-  L 
uance  of  a  certain  dynasty.(c) 

Hanover  and  Great  Britain,  while  under  the  same  crown,  Prussia  and 
Neufchatel  in  Switzerland,  at  the  time  when  Yattel  wrote,  afforded 
examples  of  this  kind.  Norway  and  Sweden,  since  the  Treaty  of  Vienna, 
have  presented  a  similar  instance.  In  these  cases  the  individuality  of 
the  State  as  to  her  external  relations  remains  in  abeyance,  and  is  not 
lost,  though  it  be  merged  in  the  union ;  and  therefore,  emerging  when 
that  union  is  dissolved,  she  is  entitled  to  the  rank  and  consideration  of 
an  independent  kingdom. 

LXXV1L  Fifthly. — A  State  may  place  itself  under  the  protection  of 
another  State  with  or  without  losing  its  international  existence.  It  may 
well  be,  as  Grotius,  translating  Appian,  says,  "  Sub  patrocinio  non  sub 
ditione  '"(d)  or,  according  to  his  own  expression  in  another  part  of  his 
work,  it  may  be  "  Cum  imminutione  imperil ;"  or,  "  Sine  imminutione 
imperii.(e\ 

The  proper  and  strict  test  to  apply  will  be  the  capacity  of  the  protected 
State  to  negotiate,  to  make  peace  or  war  with  other  States,  irrespectively 
of  the  will  of  its  protector.  If  it  retain  that  capacity,  whatever  may  be 
the  influence  of  the  protector,  the  protected  State  must  be  considered  as 
an  independent  member  of  the  European  commonwealth. 

It  must,  however,  retain  this  capacity  de  facto  as  well  as  de  jure ;(/) 
and  it  is  necessary  to  make  this  observation,  *because,  at  no  dis-  r  ^^  -, 
tant  period  of  history,  an  attempt  was  made  to  evade  the  appli-  L 

(6)  Annuaire  Historique,  1832,  Documens  Historique,  p.  184.  Wheaton's  His- 
tory, 433,  441.  Wheaton,  Ele"m.  du  Droit  Inter,  i.  53 — 55.  Hansard's  Parliamen- 
tary Debates,  vol.  xiii.  p.  1115. 

(c)  "  Rursum  accidit,  ut  plurium  populorum  idem  sit  caput,  qui  tamen  populi 
singuli  perfectum  ccetnm  constituunt :  neque  enim  ut  in  naturali  corpore  non 
potest  caput  unum  esse  plurium  corporum,  ita  in  morali  quoque  corpore  ;  nam  ibi 
eadem  persona,  diversa  ratione  considerata  caput  potest  esse  plurium  ac  distinc- 
torum  corporum.  Cujus  rei  certum  indicium  esse  potest,  quod  extincta  domo  regna- 
trice  imperium  ad  quemque  populum  seorsim  revertitur." — Grot.  De  J.  B.  et  P.  lib. 
i.  c.  iii.  s.  7,  §  2. 

(d)  Lib.  i.  c.  iii.  s.  21,  §  3.  (e)  Lib.  ii.  c.  XT.  s.  7,  g  1. 

(/)  "Interim  verum  est  accidere  plerumque,  ut  qui  superior  est  in  foedere,  si  is 
potentia  multum  antecellat,  paulatim  imperium  proprie  dictum  usurpet :  praeser- 

tim  si  foedus  perpetuum  sit,  et  cum  jure  prsesidia  inducendi  in  oppida,  &c 

Haec  cum  fiunt,  et  ita  fiunt  ut  patientia  in  jus  transeat,  qua  de  re  alibi  erit  dispu- 
tandi  locus,  tune  aut  qui  socii  fuerant  fiunt  subditi,  aut  certe  partitio  fit  summi 
imperii,  qualem  accidere  posse  supra  diximus." — Grotius,  lib.  i.  c.  iii.  s.  21,  pp. 
126,  127. 


104  PHILLIMORE    ON    INTERNATIONAL    LAW. 

cation  of  this  principle  of  law,  by  retaining  theoretically  the  name  when 
the  substance  was  practically  and  notoriously  lost.  The  Swiss  Cantons 
and  the  States  forming  the  Confederation  of  the  Rhine,  to  say  nothing  of 
other  countries,  were  nominally  free  and  independent  when  their  armies 
were  under  French  officers,  their  cabinets  under  French  ministers,  and 
their  whole  constitution  entirely  subject  and  subservient  to  their  French 
ruler  and  protector  Napoleon.  They  were,  therefore,  justly  considered 
by  International  Law  as  provinces  of  France,  and  were  denied  the  rights 
of  independent  States  during  the  continuance  of  this  state  of  subserviency. 
It  was  on  this  ground  that  the  capture  of  the  Danish  fleet,  in  1806,  by 
Great  Britain  was  justified — namely,  that  it  was  de  facto  a  fleet  in  the 
power  and  under  the  orders  of  France.  This  will  be  treated  of  in  a  later 
portion  of  this  work. 

On  the  other  hand,(^)  while  this  capacity  remains,  no  mere  inequality 
of  alliance  is  destructive  of  the  personality  (persona  standi\  of  a  State 
among  nations.  The  parties  to  such  alliance  are  not  the  less  sovereign 
r  *qq  ~i  because  they  *have  consented  of  their  own  accord  to  disadvan- 
-I  tageous  terms  in  their  treaties  with  other  nations ;  it  belongs,  as 
Grrotius  says,  to  unequal  alliances,  "Ut  potentiori  plus  honoris,  infirmiori 
plus  auxilii  deferatur  ;"(&)  or  because  they  rely  upon  the  arm  of  those 
nations  for  succour  and  defence  when  attacked  :  "  Si  ergo  populus  tali 
fredere  obligatus  liber  manet,  si  alterius  potestati  subjectus  non  est, 
sequitur  ut  summum  imperium  retineat.  Atque  idem  de  rege  pronunci- 
undum  est  enim  populi  liberi,  et  regis  qui  vere  rex  sit,  eadem  ratio." (i) 

LXXVIII.  Sixthly. — States  which  cannot  stand  this  test,  which  can- 
not negotiate,  declare  peace  or  war  with  other  countries  without  the  con- 
sent of  their  protector,  are  only  mediately  and  in  a  subordinate  degree 
considered  as  subjects  of  International  Law."(&)  In  war  they  share  the 

(ff)  "Proculus  Libro,  Epistolarum  viii. — Non  dubito,  quin  foederati  et  liberi 
nobis  externi  non  sint,  neque  inter  nos  atque  eos  postliminium  sit;  etenim  quid 
inter  nos  atque  eos  postliminio  opus  est,  quum  et  illi  apud  nos  et  libertatem  suam 
et  dominium  rerum  suarum  seque,  atque  apud  se  retineant,  et  eadem  nobis  apud 
eos  contingant?"  Sec.  1.  "Liber  autum  populus  est  is,  qui  nullius  alterius  populi 
potestati  est  subjectus  sire  qui  foederatus  est,  item  sive  sequo  foedere  in  amicitiam 
venit,  sive  foedere  comprehensum  est,  ut  is  populus  alterius  populi  majestatem  comiter 
conservaret ;  hoc  enim  adjicitur,  ut  intelligatur,  alterum  non  esse  liberum  ;  et 
quemadmodum  clientes  nostros  intelligimus  li'oeros  esse,  etiam  si  neque  auctori- 
tate,  neque  dignitate,  neque  jure  omni  nobis  pares  sunt,  sic  eos,  qui  majestatem 
nostrum  comiter  conservare  debent,  liberos  esse  intelligendum  est." — Dig.  xlix.  tit.  xv. 

De  Captivis  et  de  Postliminio,  &c.  Grotius  incorporates  this  reasoning  into 
International  Law. — Lib.  i.  c.  iii.  21,  22 ;  De  J.  B.  et  P.  p.  119. 

See  the  reason  of  the  exception  in  the  case  of  the  Santa  Anna,  7  Edwards's 
Adm.  Rep.  181. 

(h)  Grotius,  ubi  supra  (t)  Grotius,  ubi  supra. 

AdherbaPs  Speech  to  the  Roman  Senate  describes  a  protected  kingdom  in  these 
words:  "P.  C.  Micipsa  pater  meus  moriens  naihi  praecepit,  uti  regni  Numidise 
tantummodo  procurationem  existimarem  meam ;  ceterum  jus,  et  imperium  penes  ros 
esse :  simul  eniterer  domi  militiseque  quam  maximo  usui  esse  populo  Romano. 
Vos  mihi  cognatorum,  vos  in  locum  affinium  ducerem ;  si  ea  fecissem,  in  vestrfi, 
amicitia  exercitum,  divitias  munimenta  regni  me  habiturum."  Sallust,  Bellum 
Jugurth.  14. 

(k)  Though  Grotius  (c.  xxi.  p.  118)  would  seem  to  think  otherwise;  but  Bar- 
bejrac's  note  (vol.  i.  161,  25)  supports  the  view  in  the  text. 


DIFFERENT    KINDS    OF    STATES.  105 

fortunes  of  their  protectors ;(/)  but  they  are  for  certain  purposes,  and 
under  certain  limitations,  dealt  with  as  independent,  moral  persons,  espe- 
cially in  questions  of  Comity,  touching  the  persons  and  property  of  their 
own  subjects  in  a  foreign  country,  or  of  strangers  in  their  own  territory, 
and  with  respect  to  other  matters  of  the  like  kind. 

States  of  this  description  are  sometimes,  but  with  admitted  impro- 
priety of  expression,  called  semi-sovereign  (demi-souveran — Jialbsouve- 
ran.)  Such  appears  to  be  the  lordship  of  Kniphausen,  in  North  Ger- 
many, which  exercises  independent  jurisdiction  over  the  inhabitants  of 
a  territory  enjoying  maritime  traffic*  and  a(m)  flag  of  its  own, 
under  the  protection  of  the  German  Confederation  and  the  Suze- 
rainete  (Hoheit  Oberhoheit)  of  Oldenburg. (»)  Such  is  the  Republic  of 
Polizza,(o)  in  Dalmatia,  under  the  protection  of  Austria.  Such,  it  should 
seem,  are  the  provinces  of  Montenegro,  Moldavia  and  Wallachia,(^>)  and 
the  hereditary  principality  of  Servia,  under  the  Suzerainte  of  Turkey ; 
but  the  international  status  of  these  tributary  provinces  of  Turkey  will 
be  presently  considered.  Such  was  the  little  State  of  Monaco,  from 
1641  to  the  Revolution,  under  the  Protectorate  of  France ;  replaced 
under  it  by  the  Treaty  of  Paris  in  1814  ;  and,  finally,  by  a  Treaty  in 
1815,  placed  under  the  Protectorate  of  Sardinia. 

LXXIX.  The  Ionian  Islands,  placed  by  the  Treaty  of  Paris  under  the 
protection  of  Great  Britain,  are  cited  by  Kliiber  as  a  perfect  specimen  of 
a  semi-sovereign  State. (5) 

By  the  Treaty  between  Great  Britain  and  Austria,  and  Russia  and 
Prussia,  signed  at  Paris,  November  5th,  1815,  it  is  provided,  that — 

"  I.  The  Islands  of  Corfu,  Cephalonia,  Zante,  Santa  Maura,  Ithaca, 
Cerigo,  and  Paxo,  with  their  dependencies,  such  as  they  are  described  in 
the  Treaty  between  his  Majesty  the  Emperor  of  all  the  Russias  and  the 
Ottoman  Porte,  of  the  21st  of  March,  1800,  shall  form  a  single,  free,  and 
independent  State,  under  the  denomination  of  the  United  States  of  the 
Ionian  Islands. 

*"  II.  This  State  shall  be  placed  under  the  immediate  and  ,.  ^f.  -, 
exclusive  protection  of  his  Majesty  the  King  of  the  United  L 
Kingdom  of  Great  Britain  and  Ireland,  his  heirs  and  successors.  The 
other  contracting  Powers  do  consequently  renounce  every  right  or  parti- 
cular pretension  which  they  might  have  formed  in  respect  to  them,  and 
formally  guarantee  all  the  dispositions  of  the  present  Treaty. 

"  III.  The  United  States  of  the  lonion  Islands  shall,  with  the  appro- 
bation of  the  protecting  Power,  regulate  their  internal  organization;  and, 
in  order  to  give  to  all  the  parts  of  this  organization  the  necessary  con- 

(l)  Vattel,  1.  xvi.,  Wolff,  c.  iv.  437—439. 

(m)  Under  this  ancient  German  Empire,  there  were  a  variety  of  petty  Princi- 
palities exercising  a  territorial  supremacy  (Landeshoheit,)  but,  nevertheless,  sub- 
ject to  the  legislative  and  judicial  authority  of  the  Emperor  and  the  Empire. 
These  were  absorbed  in  the  German  Confederation,  except  Kniphausen. 

(«)  Heffters,  das  Europaische  Volkerrecht,  1  Buch.  xxxviii.  s.  19. 

(o)  Marten's  Droit  des  Gens,  liv.  i.  c.  ii.  s.  20. 

(p)  Wheaton,  Ele"m.  De  Dr.  Int.  i.  49. 

(q)  "Einen  wahren  halbsoureranen  Staatbilden,  seit  1815,  Die  Vereinigten 
Staaten  der  lonischen  Inseln  wegen  der  schutzund  Souverainetata  Rechte,  welche 
Grossbritannien  iiber  sie  auszuiiben  hat." — Kliiber,  \  33. 

JULY,  1854.— 8 


106  PHILLIMORE    ON    INTERNATIONAL    LAW. 

sistency  and  action,  his  Britannic  Majesty  will  employ  a  particular  soli- 
citude with  regard  to  the  legislation  and  the  general  administration  of 
those  States.  His  Majesty  will  therefore  appoint  a  Lord  High  Commis- 
sioner to  reside  there,  invested  with  all  the  necessary  power  and  authori- 
ties for  this  purpose. 

"  IV.  In  order  to  carry  into  execution  without  delay  the  stipulations 
mentioned  in  the  articles  preceding,  and  to  ground  the  political  re-or- 
ganization of  the  United  lonion  States  upon  that  organization  which  is 
actually  in  force,  the  Lord  High  Commissioner  of  the  protecting  Power 
shall  regulate  the  forms  of  convocation  of  a  legislative  assembly,  of 
which  he  shall  direct  the  proceedings,  in  order  to  draw  up  a  new  Con- 
stitutional Charter  for  the  States,  which  his  Majesty,  the  King  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  shall  be  requested  to 
ratify. 

"  Until  such  Constitutional  Charter  shall  have  been  so  drawn  up  and 
duly  ratified,  the  existing  Constitutions  shall  remain  in  force  in  the  dif- 
ferent Islands,  and  no  alterations  shall  be  made  in  them,  except  by  his 
Britannic  Majesty  in  council. 

"V.  In  order  to  ensure,  without  restriction,  to  the  inhabitants  of  the 
United  States  of  the  Ionian  Islands  the  advantages  resulting  from  the 
high  protection  under  which  these  States  are  placed,  as  well  as  for  the 
exercise  of  the  rights  inherent  in  the  said  protection,  his  Britannic  Ma- 
r  *Qfi  ~\  Jes*y  SQall  have  the  right  to  occupy  the  fortresses  and  places  of 
J  *those  States,  and  to  maintain  garrisons  in  the  same.  The 
military  force  of  the  said  United  States  shall  also  be  under  the  orders  of 
the  Commander-in-Chief  of  the  troops  of  his  Britannic  Majesty. 

"  VI.  His  Britannic  Majesty  consents  that  a  particular  Convention 
with  the  Government  of  the  said  United  States  shall  regulate,  according  to 
the  revenues  of  those  States,  everything  which  may  relate  to  the  main- 
tenance of  the  fortresses  already  existing,  as  well  as  to  the  subsistence 
and  payment  of  the  British  garrisons,  and  to  the  number  of  men  of 
which  they  shall  be  composed  in  time  of  peace. 

"  The  same  Convention  shall  likewise  fix  the  relations  which  are  to 
exist  between  the  said  armed  force  and  the  Ionian  Government. 

"  VII.  The  trading  flag  of  the  United  States  of  the  Ionian  Islands 
shall  be  ackowledged  by  all  the  contracting  Parties  as  the  flag  of  a  free 
and  independent  State.  It  shall  carry  with  the  colours,  and  above  the 
armorial  bearings  thereon  displayed  before  the  year  1807,  such  other  as 
his  Britannic  Majesty  may  think  proper  to  grant,  as  a  mark  of  the  pro- 
tection under  which  the  said  United  lonion  States  are  placed ;  and  for 
the  more  effectual  furtherance  of  this  protection,  all  the  ports  and  har- 
bours of  the  said  States  are  hereby  declared  to  be,  with  respect  to 
honorary  and  military  rights,  within  the  British  jurisdiction.  The  com- 
merce between  the  United  lonion  States,  and  the  dominions  of  his 
Imperial  and  Royal  Apostolic  Majesty,  shall  enjoy  the  same  advan- 
tages and  facilities  as  that  of  Great  Britain  with  the  said  United  States. 
None  but  commercial  agents,  or  Consuls,  charged  solely  with  the  carry- 
ing on  commercial  relations,  and  subject  to  the  regulations  to  which 


DIFFERENT    KINDS     OF     STATES.  107 

commercial  agents  or  Consuls  are   subject  in  other  independent  States, 
shall  be  accredited  to  the  United  States  of  the  Ionian  Islands. "(r) 

*By  the   Constitutional  Chart  of  the  United  States  of  the  r  #Q_  -, 
lonion  Islands,  as  agreed  on  and  passed  unanimously  by  the  L 
legislative  assembly  on  the  second  of  May,  1817,  it  is  provided  as  fol- 
lows (s.  4)  as  to  their  Foreign  Relations : — 

"  I.  Whereas,  in  the  latter  part  of  the  seventh  article  of  the  Treaty 
of  Paris,  it  is  agreed,  'That  no  person,  from  any  Power  whatsoever, 
shall  be  admitted  within  these  states,  possessing  or  pretending  to  possess 
any  powers  beyond  those  which  are  defined  in  the  aforesaid  article ;'  it 
is  hereby  declared,  that  any  person  who  shall  assume  to  himself  any 
authority  as  an  agent  for  a  foreign  Power,  except  as  therein  directed, 
shall  be  amenable  to  be  tried  before  the  Supreme  Council  of  Justice, 
and  be  liable,  if  found  guilty,  to  punishment,  as  in  case  of  high  treason 
against  the  State. 

"II.  No  native,  or  subject,  of  the  United  States  of  the  lonion  Islands 
shall  be  held  competent  to  act  as  Consul  or  Yice-Consul  for  any  foreign 
Power  within  the  same. 

"  III.  The  British  Consuls,  in  all  ports  whatsoever,  shall  be  consi- 
dered to  be  the  Consuls  and  Vice-Consuls  of  the  United  States  of  the 
Ionian  Islands,  and  the  subjects  of  the  same  shall  be  entitled  to  their 
fullest  protection. 

"  IV.  All  applications  necessary  to  be  made  by  these  States  to  any 
foreign  Power,  shall  be  transmitted  by  the  Senate  to  his  Excellency  the 
Lord  High  Commissioner  of  the  protecting  Sovereign,  who  shall  for- 
ward the  same  to  the  Ambassador  or  Minister  to  the  protecting  Sove- 
reign, resident  at  the  court  of  the  said  foreign  Power,  for  the  purpose  of 
submitting  them  in  due  form  to  the  said  Power. 

"  V.  The  approval  of  the  appointment  of  all  foreign  agents  or  Con- 
suls the  United  States  of  the  Ionian  Islands  shall  be  by  the  Senate, 
through  the  medium  of  his  Highness  the  President  thereof,  with  the 
concurrence  of  his  Excellency  the  Lord  High  Commissioner  of  the  pro- 
tecting Sovereign. 

"  VI.  With  a  view  to  ensure  the  most  perfect  protection  to  the  com- 
merce of  these  Islands,  every  vessel,  navigating  under  the  Ionian  flag, 
shall  be  bound  before  leaving  the  port  of  the  Ionian  States  to  which  she 
belongs,  to  provide  herself  *with  a  pass,  signed  by  his  Excel-  r  J.QQ  -\ 
lency  the  Lord  High  Commissioner  of  the  protecting  Sovereign,  "- 
and  no  vessel,  sailing  without  such  pass,  shall  be  considered  as  navigat- 
ing according  to  law.  But  it  is  reserved  to  his  Majesty  the  protecting 
Sovereign  to  decide  how  far  it  may  be  necessary  that,  independent  of 
such  pass,  they  should  be  bound  to  supply  themselves  with  Mediterranean 
passes." 

The  sixth  section  relates  to  the  National  Colours  and  Armorial  Bear- 
ings:— 

"  I.  The  National  Commercial  Flag  of  the  United  States  of  the 
Ionian  Islands,  as  directed  by  the  seventh  article  of  the  Treaty  of  Paris, 

(r)  Extracted  from  Hertslet's  Treaties,  vol.  i.  p.  4Y. 
Marten's  Rec.  de  Tr.  N.  R.  ii.  663. 


108  PHILLIMORE      ON     INTERNATIONAL     LAW. 

shall  be  the  original  flag  of  these  States  with  the  addition  of  the  Brit- 
ish union  to  be  placed  in  the  upper  corner  next  to  the  flag-staff. 

"  II.  On  usual  days  the  British  colours  shall  be  hoisted  on  all  the 
forts  within  the  United  States  of  the  lonion  Islands ;  but  a  standard 
shall  be  made,  to  be  hoisted  on  days  of  public  rejoicing  and  festivity, 
according  to  the  model  of  the  armorial  bearings  of  the  said  States. 

"III.  The  arms,  or  armorial  bearings,  of  the  United  States  of  the 
Ionian  Islands  shall  hereafter  consist  of  the  British  arms  in  the  centre, 
surrounded  by  the  arms  of  each  of  the  Islands  composing  the  said 
States. 

"  IV.  The  armorial  bearings  of  each  of  the  Islands  shall  consist  of 
the  individual  arms  of  the  Island,  and  such  emblem  denoting,  the  Sove- 
reign protection,  as  may  be  deemed  advisable." 

In  the  seventh  section  are  the  following  General  Clauses : — 

"  III.  In  the  instance  of  all  maritime  transactions  and  the  collection 
of  the  customs,  it  shall  be  competent  for  the  proper  authorities  to  employ 
either  British  or  Ionian  subjects. 

"  V.  A  specific  law  shall  settle  the  terms,  time,  and  mode  for  the 
naturalization  offoregin  subjects  in  these  States ;  but  the  subjects  of  the 
r  *QQ  ~\  protecting  Power  shall,  in  all  instances,  *be  entitled  to  natural- 
-1  ization  in  half  the  time  that  is  required  for  those  of  any  foreign 
Power;  and  a  subject  of  the  protecting  Power,  or  of  any  other  Power, 
may  be  at  once  naturalized  by  a  bill  to  that  effect,  without  reference  to 
any  fixed  time  of  residence  in  these  States,  which  shall  be  laid  down  in 
the  law  itself.(s). 

The  Protectorate  of  Great  Britain  over  the  seven  Ionian  Islands  was 
ratified  by  the  Porte  in  1819. (*) 

LXXX.  In  all  the  foregoing  instances,  though  they  may  exhibit  a 
greater  or  a  less  derogation  from  the  rights  of  independent  Sovereignty 
(excepting  perhaps  in  the  case  of  Servia),  the  attribute  of  free  and  un- 
controlled agency  in  their  external  relations  with  foreign  States  in  want- 
ing. 

LXXXI.  Seventhly. — There  are  in  Europe  some  few  States  which  are 
Free  Republics,  to  which  Consuls  are  accredited,  and  which,  strictly 
speaking,  are  capable  of  entering  into  treaties(-w)  with  Foreign  Powers. 

Bremen,  Hambourg,  and  Lubeck(x)  are  Free  cities  of  Germany — the 
only  remains  of  that  once  formidable  and  celebrated  Hanseatic  League, 

(s)  Extracted  from  Hertslet's  Treaties,  vol.  i.  p.  53. 

(t)  Marten's  N.  R.  (Suppl.)  v.  387.  Acte  de  Ratification  de  la  Porte  Ottomane 
relativement  &  la  cession  des  lies  loniennes  a  le  Grande  Bre"tagne,  at  de  Parga  a 
la  Turquie,  du  24  Avril,  1819. — Vide  ante,  p.  94. 

(u)  For  example,  see  the  Treaty,  in  1841,  between  Mexico  and  these  cities, 
entitled  "  Traite"  d'Amite"  de  Navigation  et  de  Commerce,  conclu  entre  la  Re"pub- 
lique  du  Mexique  et  les  villes  Anse"atiques  de  Breme,  Lubeck,  et  Hambourg ;  signs' 
h  Londres  le  7  Avril,  1832,  ratine  a  Londres  le  8  Novembre,  1841." — De  M.  et  De 
C.  v.  155. 

Convention  between  the  Hanseatic  States  and  United  States  of  North  America, 
London,  Sept.  29,  1825. — Elliot's  American  Diplomatic  Code,  ii.  202. 

Convention  with  the  Porte,  May,  1839. — Marten's  Nouv.  Rec.  ii.  183. 

(x)  Miltitz,  Manuel  des  Consuls,  1.  i.  c.  iii.  s.  9 ;  1.  ii.  c.  i.  s.  3,  Art.  6.  '  ', 

Waltershausen,  Urkundliche  Geschichtes  des  TJrsprunges  der  Deutschen  Hanse. 

Gazetteer  of  the  World,  vol.  vi.,  "  Hanse  Towns." 


DIFFERENT     KINDS    OF     STATES.  109 

the  last  general  diet  of  which  was  held  at  Lubeck  in  1630.     These  three 
towns  were  Cities  of  the  German  Empire,  and  since  1814  have 
been  ^admitted  as  members  of  the  German  Confederation,  and 
have,  in  conjunction  with  Frankfort,  a  vote  in  the  Diet. 

LXXXII.  Frankfort-on-the-Maine(y)  is  the  most  important  free  town 
of  Germany,  and,  as  has  been  mentioned,  is  the  seat  of  the  German  diet. 
The  present  constitution  of  this  free  city  was  established  in  1816.  It 
consists  of  a  Senate  in  which  the  Executive  Power  is  lodged,  and  a  Legis- 
lative body  chosen  by  Electors  of  the  city  and  suburbs. 

LXXXIII.  Andorra  or  Andorre(2)  is  a  small  independent  State  com- 
posed of  three  valleys  on  the  southern  side  of  the  Central  Pyrenees.  It 
is  considered  as  a  neutral  and  independent  Province,  though  to  a  certain 
extent  connected  both  with  France  and  Spain.  This  little  Republic  has 
preserved  for  a  long  series  of  years  the  institutions  which  it  now  enjoys. 

LXXXIV.  San  Marino  is  also  a  very  small  but  independent  Republic 
in  the  north-east  of  Italy,  surrounded  on  all  sides  by  the  Papal  dominions. 
The  military  force  of  the  Republic  is  said  to  consist  of  80  men,  and  the 
whole  population  to  be  about  7,600.  In  1739,  Cardinal  Alberoni  sub- 
jected it  to  the  Pope,  who,  however,  restored  the  Republic.  It  declined 
the  offer  of  an  increase  of  territory  made  to  it  by  Napoleon  in  1797. 

LXXXV.  Eighthly. — The  Constitution  and  Territory  of  Belgium  have 
been  also  definitively  established  by  Treaty,  and  are  therefore  matter  of 
International  Law.  It  will  be  seen  that  a  perpetual  neutrality, (a)  in  ques- 
tions arising  between  other  Powers,  is  the  most  remarkable  condition  of 
*the  national  existence  of  Belgium.  The  articles  of  the  Treaty 
which  establish  the  kingdom  of  Belgium  are  as  follows : — 

"  1.  The  Belgian  territory  shall  be  composed  of  the  provinces  of  South 
Brabant,  Liege,  Namur,  Hainault,  West  Flanders,  East  Flanders,  Ant- 
werp, and  Limbourg;  such  as  they  formed  part  of  the  United  Kingdom 
of  the  Netherlands  constituted  in  1815,  with  the  exception  of  those  dis- 
tricts of  the  province  of  Limbourg  which  are  designated  in  Art.  4. 

"The  Belgian  territory  shall,  moreover,  comprise  that  part  of  the 
Grand  Duchy  of  Luxembourg  which  is  specified  in  Art.  2. 

"2.  In  the  Grand  Duchy  of  Luxembourg,  the  limits  of  the  Belgian 
territory  shall  be  such  as  will  be  hereinafter  described :  viz.,  commencing 
from  the  frontier  of  France,  between  Rodange,  which  shall  remain  to  the 
Grand  Duchy  of  Luxemburg,  and  Athus,  which  shall  belong  to  Belgium 
there  shall  be  drawn,  according  to  the  annexed  map,  a  line  which — leav- 
ing to  Belgium  the  road  from  Arlon  to  Longwy,  the  town  of  Arlon  with 
its  district,  and  the  road  from  Arlon  to  Bastogne — shall  pass  between 
Mesancy,  which  shall  be  on  the  Belgian  territory,  and  Clemancy,  which 

(y)  Treaties  between  Great  Britain  and  Frankfort : — 

Treaty,  Commerce  and  Navigation,  London,  May  13, 1832. — Hertslet's  Treat,  vol. 
iv.  147,  153,  548. 

Ib.  Dec.  29,  1835.— Ib.  vol.  v.  97,  98,  625. 

Convention,  Commerce  and  Navigation,  March  2,  1841. — Ib.  vol.  vi.  751,  755, 
996. 

Traite"  de  Commerce  et  de  Navigation  entre  la  Grece  et  Villes  Anse"atiques,  May 
1843.— Vide  De  M.  et  C.  311. 

(z)  Gazetteer  of  the  World,  "Andorra."  (a)  Vide  post,  Arts.  7—26. 


110         PHILLIMORE     ON     INTERNATIONAL     LAW. 

shall  remain  to  the  Grand  Duchy  of  Luxembourg,  terminating  at  Stein- 
fort,  which  place  shall  also  remain  to  the  Grand  Duchy.  From  Steinfort 
this  line  shall  be  continued  in  the  direction  of  Eischen,  Hecbus,  Guirsch, 
Oberpalen,  Grende,  Nothomb,  Parette,  and  Perle,  as  far  as  Martelange : 
Hecbus,  Guirsch,  Grende,  Nothomb,  and  Parette  being  to  belong  to  Bel- 
gium ;  and  Eischen,  Oberpalen,  Perle,  and  Martelange  to  the  Grand 
Duchy. 

"  From  Martelange  the  said  line  shall  follow  the  course  of  the  Sure, 
the  waterway  (tlialweg\  of  which  river  shall  serve  as  the  limit  between 
the  two  States  as  far  as  opposite  to  Tintange,  from  whence  it  shall  be 
continued,  as  directly  as  possible,  towards  the  present  frontier  of  the  Ar- 
rondissement  of  Diekirch,  and  shall  pass  between  Surret,  Harlange,  and 
Tarchamps,  which  places  shall  be  left  to  the  Grand  Duchy  of  Luxem- 
f"*1 091  bourg,  and  Honville,  Liverchamp,  and  Loutremange,  *  which  places 
J  shall  form  part  of  the  Belgian  territory.  Then  having — in  the 
vicinity  of  Doncols  and  Soulez,  which  shall  remain  to  the  Grand  Duchy 
— reached  the  present  boundary  of  the  Arrondissement  of  Diekirch,  the 
line  in  question  shall  follow  the  said  boundary  to  the  frontier  of  the 
Prussian  territory.  All  the  territories,  towns,  fortresses,  and  places  situ- 
ated to  the  west  of  this  line,  shall  belong  to  Belgium ;  and  all  the  territo- 
ries, towns,  fortresses,  and  places  situated  to  the  east  of  the  said  line  shall 
continue  to  belong  to  the  Grand  Duchy  of  Luxembourg. 

"  It  is  understood  that,  in  marking  out  this  line,  and  in  conforming  as 
closely  as  possible  to  the  description  of  it  given  above,  as  well  as  to  the 
delineation  of  it  on  the  map,  which,  for  the  sake  of  greater  clearness,  is 
annexed  to  the  present  article,  the  Commissioners  of  deinarkcation,  men- 
tioned in  Art.  6,  shall  pay  due  attention  to  the  localities,  as  well  as  to 
the  mutual  necessity  for  accommodation  which  may  result  therefrom. 

"  3.  In  return  for  the  cessions  made  in  the  preceding  article,  there 
shall  be  assigned  to  his  Majesty  the  King  of  the  Netherlands,  Grand 
Duke  of  Luxembourg,  a  territorial  indemnity  in  the  province  of  Lim- 
bourg. 

"4.  In  execution  of  that  part  of  Art.  1,  which  relates  to  the  province 
of  Limbourg,  and  in  consequence  of  the  cessions  specified  in  Art.  2, 
there  shall  be  assigned  to  his  Majesty  the  King  of  the  Netherlands,  either 
to  be  held  by  him  in  his  character  of  Grand  Duke  of  Luxembourg,  or 
for  the  purpose  of  being  united  to  Holland,  those  territories,  the  limits 
of  which  are  hereinafter  described : — 

"First.  On  the  riglit  bank  of  the  Meuse:  to  the  old  Dutch  enclaves 
upon  the  said  bank  in  the  province  of  Limbourg,  shall  be  united  those 
districts  of  the  said  province  upon  the  same  bank,  which  did  not  belong 
to  the  States  General  in  1790 ;  in  such  wise  that  the  whole  of  that  part 
of  the  present  province  of  Limbourg,  situated  upon  the  right  bank  of 
the  Meuse,  and  comprised  between  that  river  on  the  west,  the  frontier  of 
r*l  031  ^e  Prussian  territory  on  the  east,  the  present  *frontier  of  the 
J  province  of  Liege  on  the  south,  and  Dutch  Guelderland  on  the 
north,  shall  henceforth  belong  to  his  Majesty  the  King  of  the  Nether- 
lands, either  to  be  held  by  him  in  his  character  of  Grand  Duke  of  Lux- 
embourg, or  in  order  to  be  united  to  Holland. 


DIFFERENT    KINDS    OF    STATES.  Ill 

"  Secondly.  On  the  left  bank  of  the  Meuse :  commencing  from  the 
southernmost  point  of  the  Dutch  province  of  North  Brabant,  there  shall 
be  drawn,  according  to  the  annexed  map,  a  line  which  shall  terminate 
on  the  Meuse  below  Wessem,  between  that  place  and  Stevenswaardt,  at 
the  point  where  the  frontiers  of  the  present  Arrondissement  of  Ruremond 
and  Maestricht  meet,  on  the  left  bank  of  the  Meuse ;  in  such  manner 
that  Bergerot,  Stamproy,  Neer  Itteren,  Ittervoord,  and  Thome,  with  their 
districts,  as  well  as  all  the  other  places  situated  to  the  north  of  this  line, 
shall  form  part  of  the  Dutch  territory. 

"  The  old  Dutch  enclaves  in  the  province  of  Limbourg,  upon  the  left 
bank  of  the  Meuse,  shall  belong  to  Belgium,  with  the  exception  of  the 
town  of  Maestricht,  which,  together  with  a  radius  of  territory,  extending 
1,200  toises  from  the  outer  glacis  of  the  fortress  on  the  said  bank  of  this 
river,  shall  continue  to  be  possessed  in  full  sovereignty  and  property  by 
his  Majesty  the  King  of" the  Netherlands. 

"5.  It  shall  be  reserved  to  his  Majesty  the  King  of  the  Netherlands, 
Grand  Duke  of  Luxembourg,  to  come  to  an  agreement  with  the  Germanic 
Confederation,  and  with  the  Agnates  of  the  House  of  Nassau,  as  to  the 
application  of  the  stipulations  contained  in  Arts.  3  and  4,  as  well  as  upon 
all  the  arrangements  which  the  said  articles  may  render  necessary,  either 
with  the  above-mentioned  Agnates  of  the  House  of  Nassau,  or  with  the 
Germanic  Confederation. 

"  6.  In  consideration  of  the  territorial  arrangements  above  stated, 
each  of  the  two  parties  renounces  reciprocally,  and  for  ever,  all  preten- 
sion to  the  territories,  towns,  fortresses,  and  places  situated  within  the 
limits  of  the  possessions  of  the  other  party,  such  as  those  limits  are  de- 
scribed in  Arts.  1,  2,  and  4. 

*"The  said  limits  shall  be  marked  out  in  conformity  with 
those  Articles  by  Belgian  and  Dutch  Commissioners  of  demarca- 
tion,  who  shall  meet  as  soon  as  possible  in  the  town  of  Maestricht. 

"  7.  Belgium,  within  the  limits  specified  in  Arts.  1,  2,  and  4,  shall 
form  an  independent  and  perpetually  neutral  State.  It  shall  be  bound 
to  observe  such  neutrality  towards  all  other  States. 

"8.  The  drainage  of  the  waters  of  the  two  Flanders  shall  be  regulated 
between  Holland  and  Belgium,  according  to  the  stipulations  on  this  sub- 
ject, contained  in  Art.  6  of  the  definitive  Treaty,  concluded  between  his 
Majesty  the  Emperor  of  Germany  and  the  States  General  on  the  8th  of 
November,  1785 ;  and  in  conformity  with  the  said  article,  Commission- 
ers, to  be  named  on  either  side,  shall  make  arrangements  for  the  appli- 
cation of  the  provisions  contained  in  it. 

"  9.  The  provisions  of  Arts.  108 — 117,  inclusive  of  the  General  Act 
of  the  Congress  of  Vienna,  relative  to  the  free  navigation  of  navigable 
rivers,  shall  be  applied  to  those  navigable  rivers  which  separate  the  Bel- 
gian and  the  Dutch  territories,  or  which  traverse  them  both. 

"  So  far  as  regards  specially  the  navigation  of  the  Scheldt,  it  shall  be 
agreed  that  the  pilotage  and  the  buoying  of  its  channel,  as  well  as  the 
conservation  of  the  channels  of  the  Scheldt  below  Antwerp,  shall  be  sub- 
ject to  a  joint  superintendence;  that  this  joint  superintendence  shall  be 
exercised  by  Commissioners,  to  be  appointed  on  both  sides  for  this  pur- 


112  PHILLIMORE     ON     INTERNATIONAL     LAW. 

pose ;  that  moderate  pilotage  dues  shall  be  fixed  by  mutual  agreement, 
and  that  such  dues  shall  be  the  same  for  the  Dutch  as  for  the  Belgian 
commerce. 

"  It  is  also  agreed  that  the  navigation  of  the  intermediate  channels 
between  the  Scheldt  and  the  Rhine,  in  order  to  proceed  from  Antwerp 
to  the  Rhine,  and  vice  versa,  shall  continue  reciprocally  free,  and  that  it 
shall  be  subject  only  to  moderate  tolls,  which  shall  provisionally  be  the 
same  for  the  commerce  of  the  two  countries. 

*  *  #  *  *  # 

PUflfn       *"  ^'  ^e  Courts  of  Great  Britain,  Austria,  France,  Prussia, 
-I  and  Russia,  guarantee  to  his  Majesty  the  King  of  the  Belgians, 
the  execution  of  all  the  preceding  articles. 

"  26.  In  consequence  of  the  stipulations  of  the  present  Treaty,  there 
shall  be  peace  and  friendship  between  their  Majesties  the  King  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  the  Emperor  of  Austria, 
the  King  of  the  French,  the  King  of  Prussia,  and  the  Emperor  of  all  the 
Russias,  on  the  one  part,  and  his  Majesty  the  King  of  the  Belgians,  on 
the  other  part,  their  heirs  and  successors,  their  respective  States  and 
subjects,  for  ever."(6) 

LXXXVI.  Ninthly. — The  Constitution  and  Territory  of  Greece  are 
the  subject  of  Treaty  and  guarantee,  and  under  the  protection  of  Inter- 
national Law.  The  articles  which  principally  affect  the  International 
Status  of  Greece  are  as  follows  : — 

"  1.  The  Courts  of  Great  Britain,  France,  and  Russia,  duly  author- 
ized for  this  purpose  by  the  Greek  nation,  offer  the  hereditary  Sove- 
reignty of  Greece  to  the  Prince  Frederick  Otho  of  Bavaria,  second  son 
of  his  Majesty  the  King  of  Bavaria. 

"  2.  His  Majesty  the  King  of  Bavaria,  acting  in  the  name  of  his  said 
son,  a  minor,  accepts,  on  his  behalf,  the  hereditary  Sovereignty  of  Greece, 
on  the  conditions  hereinafter  settled. 

"3.  The  Prince  Otho  of  Bavaria  shall  bear  the  title  of  King  of 
Greece. 

"4.  Greece,  under  the  Sovereignty  of  the  Prince  Otho  of  Bavaria, 
and  under  the  guarantee  of  the  three  Courts,  shall  form  a  monarchical 
and  independent  State,  according  to  the  terms  of  the  Protocol,  signed 
between  the  said  Courts  on  the  3rd  of  February,  1830,  and  accepted  both 
by  Greece  and  by  the  Ottoman  Porte. 

«  The  limits  of  the  Greek  State  shall  be  such  as  shall  be  definitively 
settled  by  the  negotiations  which  the  Courts  of  Great  Britain,  France, 
and  Russia,  have  recently  opened  with  the  Ottoman  Porte,  in  execution 
of  the  Protocol  of  the  26th  of  September,  1831. 

r*1  Ofil  *"  ^'  ^c  three  Courts  having  beforehand  determined  to  con- 
L  J  vert  the  Protocol  of  the  3rd  of  February,  1830,  into  a  definitive 
Treaty,  as  soon  as  the  negotiations  relative  to  the  limits  of  Greece  shall 
have  terminated,  and  to  communicate  such  Treaty  to  all  the  States  with 
which  they  have  relations,  it  is  hereby  agreed,  that  they  shall  fulfil  this 

(b)  Hertslet's  Treaties,  vol.  iv.  pp.  27— 31,  37. 


DIFFERENT    KINDS    OF    STATES.  113 

engagement,  and  that  his  Majesty  the  King  of  Greece  shall  become  a 
contracting  party  to  the  Treaty  in  question. 

"  7.  The  three  Courts  shall,  from  the  present  moment,  use  their  in- 
fluence to  procure  the  recognition  of  the  Prince  Otho  of  Bavaria  as  King 
of  Greece  by  all  the  Sovereigns  and  States  with  whom  they  have  rela- 
tions. 

"  8.  The  Royal  Crown  and  dignity  shall  be  hereditary  in  Greece ;  and 
shall  pass  to  the  direct  and  lawful  descendants  and  heirs  of  the  Prince 
Otho  of  Bavaria,  in  the  order  of  primogeniture.  In  the  event  of  the  de- 
cease of  the  Prince  Otho  of  Bavaria,  without  direct  and  lawful  issue,  the 
Crown  of  Greece  shall  pass  to  his  younger  brother,  and  his  direct  and 
lawful  descendants  and  heirs,  in  the  order  of  primogeniture.  In  the 
event  of  the  decease  of  the  last-mentioned  Prince  also,  without  direct  and 
lawful  issue,  the  Crown  of  Greece  shall  pass  to  his  younger  brother,  and 
to  his  direct  and  lawful  descendants  and  heirs,  in  the  order  of  primo- 
geniture. In  no  case  shall  the  Crown  of  Greece  and  the  Crown  of 
Bavaria  be  united  upon  the  same  head. 

"9.  The  majority  of  the  Prince  Otho  of  Bavaria,  as  King  of  Greece, 
is  fixed  at  the  period  when  he  shall  have  completed  his  twentieth  year ; 
that  is  to  say,  on  the  1st  of  June,  1835. 

"  10.  During  the  minority  of  the  Prince  Otho  of  Bavaria,  King  of 
Greece,  his  rights  of  Sovereignty  shall  be  exercised  in  their  full  extent 
by  a  Regency  composed  of  three  Counsellors,  who  shall  be  appointed  by 
his  Majesty  the  King  of  Bavaria. 

"11.  The  Prince  Otho  of  Bavaria  shall  retain  the  full  possession  of 
his  appanages  in  Bavaria.     His  Majesty  the  King  of  Bavaria,  moreover, 
engages  to  assist,  as  far  as  may  be  *in  his  power,  the  Prince  r^-iA-r-i 
Otho  in  his  position  in  Greece,  until  a  revenue  shall  have  been  L 
set  apart  for  the  Crown  in  that  State."(c) 

LXXXVII.  Tenthly. — As  to  States  standing  in  a  Feudal  Relation  to 
other  States.  These  may  be  said  to  be  now  confined  to  the  province  of 
Turkey. 

The  existing  independent  Regencies  tributary  to  the  sublime  Porte 
are: — 

I.  In  Africa: 

1.  Tunis.  2.  Tripoli. 

II.  In  Europe: 

1.  Montenegro.  2.  Moldavia. 

3.  Wallachia.  4.  Servia.(rf) 

III.  Egypt. 

LXXXVIII.  The  relations  subsisting  between  the  Porte  and  these 
tributary  States  is  of  an  anomalous  and  perplexing  character;  nor  have 
the  great  powers  of  Europe  been  always  agreed  as  to  the  light  in  which 
all  these  Regencies  are  to  be  considered. 

LXXXIX.  First,  with  respect  to  the  Barbary  States,  which  are  tribu- 
tary to  the  Porte.  These  have  been  almost  of  necessity  treated  to  a  cer- 

(c)  Hertslet's  Treaties,  vol.  iv.  pp.  320,  322. 

(d)  Vide  post.     Tripoli  is  not  exactly  in  this  category.     See  Koch,  Hist,  des  Tr. 
iy.  388,  424,  438. 


114  PHILLIMORE     ON    INTERNATIONAL    LAW. 

tain  extent,  and  for  certain  purposes,  as  de  facto  independent  States, 
though  their  de  jure  subordination  to  the  Porte  was  undisputed. 
r*ifisn  ^e  course(<3)  which  the  European  Powers  have  adopted  *has 
J  been  such  as,  on  the  one  hand,  would  recognise  the  Supremacy 
(Suzerainete}  of  the  Porte  over  its  dependencies;  while,  on  the  other 
hand,  these  powers  have  often  demanded  and  enforced  redress  in  vindi- 
cation of  the  injuries  done  to  their  subjects,  immediately  and  in  the  first 
instance  from  these  dependencies  themselves. 

The  necessity  of  the  cases,  and  the  reason  of  the  thing,  have  rendered 
this  irregular  mode  of  International  proceeding  unavoidable. 

"Nature"  (Mr.  Burke(/)  observes,  with  his  usual  sagacity)  "has  said 
it,  that  the  Turk  cannot  govern  Egypt,  Arabia,  and  Curdistan  as  he 
governs  Thrace.  Nor  has  he  the  same  dominion  in  Crimea  which  he  has 

at  Brusa  and  Smyrna The  Sultan  gets  such  obedience  as 

he  can.  He  governs  with  a  loose  rein  that  he  may  govern  at  all;  and 
the  whole  force  and  vigour  of  his  authority  in  his  centre  is  derived  from 
a  prudent  relaxation  in  all  his  borders." 

XC.  Since  the  conquest  of  Algiers  by  France,  (1830,)  Tripoli  and 
Tunis  are  the  only  Barbary  States  (JRegences  Barbaresques}  tributary  to 
the  Porte.  Indeed,  Tripoli  is,  properly  speaking,  not  a  Barbary  State 
under  the  protection  of  the  Porte,  but  a  province  of  the  Porte,  in  the 
same  condition  and  category  as  Bagdad  or  any  other  province  of  the 
Ottoman  Power.  The  Bey  is  appointed  and  removed  at  the  pleasure  of 
the  Sultan :  nevertheless,  European  Powers  haue  catered  into  Treaties 
with  the  Bey(<7)  as  an  independent  power,  and  have  sought  redress  from 
him,  in  the  first  instance,  for  injuries  inflicted  on  their  subjects. 
T*l  OQ1  *XCI.  Tunis,  at  the  present  time,  stands  in  a  different  and 
-I  more  independent  category.  The  Bey  is  Hereditary  Regent,  and 
practically,  if  not  theoretically,  also  irremovable  by  the  Sultan,  though, 
like  Egypt,  tributary  to  the  Porte. 

In  1803, (&)  nevertheless,  the  Porte  addressed  a  Firman  equally  to 
Tunis  and  Tripoli,  commanding  both  Regencies  to  obey  the  conditions 
of  a  Treaty  of  navigation  and  commerce  which  the  Porte  had  entered 
into  with  Prussia,  and  which  related  to  both  Tripoli  and  Tunis. 

(e)  Mably,  Le  Droit  Public  de  1'Europe,  t.  i.  c.  v.  "  Le  commerce  ne  seroit  point 
en  suret6  contre  les  Puissances  de  la  cote  de  1'Afrique,  si  1'on  se  contentoit  de  pren- 
dre  a  ce  sujet  des  engagemens  avec  la  Porte.  .  .  .  Aussi  la  France,  1'Angleterre, 
les  Provinces  Unies,  &c.,  traitent  elles  directement  avec  Tunis,  Tripoli,  Alger,  &c. 
Cependant  ces  Barbaresques,  n'observant  leur  Traites  qu'autant  qu'ils  y  sont  forc6s, 
s'exposent  souvent  a  etre  chatie"s  avec  vigueur  ;  et  dans  ces  occasions  il  est  tres 
avantageux  d'avoir  contract^  de  telle  fac.on  avecle  Grand  Seigneur  qu'il  nepuisse 
prendre  leur  defence." — Ib.  p.  396. 

Wheaton's  Ele"m.  de  Dr.  Inter,  p.  49  ;  Wheaton's  Hist.  p.  536. 

(/)  Speech  on  Conciliation  with  America. — Burke's  Works,  vol.  iii.  pp.  56,  57. 

(ff)  The  Bey  styles  himself,  in  these  Treaties,  "  Bey,  Gouverneur,  et  Capitaine- 
Ge"ne>al  de  la  cite  et  royaume,  or  r6gence,  de  Tripoli."  See  Treaties  of  1762  and 
1818  (last  Treaty)  between  Tripoli  and  Great  Britain ;  Treaty  of  1830  (last  Treaty) 
between  France  and  Tripoli. 

The  Apppendix  to  this  volume  will  contain  a  chronological  catalogue  of  the 
Treaties  between  European  Powers  and  the  Re"gences  Barbaresques — Algers,  Tri- 
poli, Tunis. 

(A)  De  Martens  et  De  Cussy,  Rec.  de  Tr.  ii.  311. 


DIFFERENT    KINDS     OF     STATES.  115 

In  1813  a  Treaty  was  entered  into  between  Great  Britain  and  Tunis,(t) 
by  which  this  Regency  agreed  to  accord  to  the  inhabitants  of  the  Ionian 
Islands  the  privileges  of  British  subjects,  provided  Algiers  and  Tripoli 
adopted  the  same  course. 

XCII.  The  principal  circumstances  which  mark  the  recognition  by 
the  European  Powers  of  the  Suzerainete  of  the  Porte  over  these  Regen- 
cies appear  to  be  these : — 

1.  That  they  do  not  accredit  Public  Ministers  to  the  Courts  of  these 
Regencies,  but  send  Consuls  only. (A;) 

2.  That  when  the  Beys,  Pachas,  or  Governors  of  these  Regencies  visit 
the  European  Courts,  they  are  presented  there  by  the  Ambassador  of  the 
Porte,  and  are  not  received  as  the  representatives  of  an  independent 
State.    France,  it  is  believed,  has  not  always  been  so  particular  as  Great 
Britain  in  the  observance  of  this  not  insignificant  point  of  etiquette. 

3.  That  they  have  recognised  the  rule,  however  departed  from  in 
emergencies,  either  of  negotiating  through  the  Porte  with  respect  to 
these  Regencies,  or  of  obtaining  the  subsequent  confirmation  of  the 
Porte  for  arrangements  entered  into  with  these  Regencies. 

XCIIL  Morocco,  it  may  be  observed  in  passing,  is  unquestionably  an 
independent  State,  of  which  the  Emperor  is  the  International  r#, ..  *-. 
Representative.     Various  Treaties  between  him  and  European  L 
Powers  have  been  from  time  to  time  concluded,  without  any  reference 
direct  or  indirect  to  the  Porte. 

XCIV.  The  mountainous  province  of  Montenegro,  which  is  a  district 
of  Western  Turkey,  consists  of  an  elevated  plain,  separated  by  a  narrow 
strip  of  Austrian  territory  from  the  Adriatic,  bounded  on  the  northwest 
and  north  by  the  Bosnian  Herzegovina,  on  the  east  and  south  by  the 
Albanian  Paschalic  of  Scutari,  and  on  the  southwest  by  the  Austrian 
frontier  of  Dalmatia,  at  the  Bocca  di  Cattaro.(?) 

This  singular  region  of  mountain  fortresses,  which  was  occupied  by 
Ivan  Czernojewich,  who  left  his  paternal  domains  near  the  Lake  Scutari 
towards  the  end  of  the  fifteenth  century,  has  ever  since  that  period  been 
in  a  semi-independent  condition. 

At  first,  the  Montenegrins,  having  adopted  the  Greek  religion,  were 
placed  under  the  Protectorate  of  Venice;  but  in  1623,  after  a  desperate 
resistance,  they  were  compelled  to  pay  a  capitation  tax  (haratsch}  to  the 
Sultan. 

The  Montenegrins  have  been  till  lately  governed  by  a  Prince  Bishop 
of  the  Greek  church,  called  a  Vladika.  For  a  century  and  a  half  this 
dignitary  appears  to  have  been  hereditary  in  the  Petrovitsck  family;  but 

(i)  Ib.  401. 

(&)  Vide  post,  the  important  distinction  in  International  Law  between  the  public 
Minister  and  the  Consul. 

(I)  Gazetteer  of  the  World;  Fullarton,  1853,  vol.  ix.— "  Montenegro." 

Wilkinson,  "  Delmatia  and  Montenegro;"  2  vols.  1848. 

Treaty  of  Carlowitz,  1699;  Schmauss,  ii.  1131. 

Treaty  of  Passarowitz,  1718  ;  Schmauss,  ii.  1705. 

Treaty  of  Belgrade,  1739 ;  Wenck,  Cod.  J.  Gent.  i.  316. 

Treaty  of  Sistowa,  1791 ;  Marten's  Rec.  de  Tr.  vol.  v.  p.  246. 


116  PHILLIMORE     ON     INTERNATIONAL     LAW. 

the  present  VladiJca,  who  succeeded  in  1830,  refused  the  episcopal  dig- 
nity, and  is  a  lay  Chief. 

By  the  Treaty  of  Carlowitz  in  1699  between  the  Republic  of  Venice 
and  the  Ottoman  Porte,  Montenegro  appears  to  have  been  left  under  the 
Protectorate  of  Venice;  but  by  the' Treaty  of  Passarowitz  in  1718,  it  be- 
came again  subject  to  the  Porte;  in  1791,  it  was  still  a  part  of  the  Turkish 
..  *empire;  for  it  is  a  provision  of  the  Treaty  of  Sistowa,(m)  con- 
J  eluded  in  that  year  between  Austria  and  the  Porte,  that  the 
Montenegrins  shall  not  be  molested  or  punished  for  having  declared 
against  their  proper  Sovereign. 

In  1796,  the  Montenegrins  placed  themselves  under  the  Protectorate 
of  Russia;  and  ever  since  that  period  a  relation  of  an  undefined  kind  has 
subsisted  between  them. 

Since  1815  the  Venetian  possessions  on  the  Illyrian  coast,  including 
the  Bocca  di  Cattaro  and  the  Ragusan  territory,  have  been  annexed  to 
Austria.  Nevertheless,  two  small  points  on  the  coast — the  Leek  and 
the  Sutorina,  which  had  been  secured  by  the  Treaties  of  Carlowitz  and 
Passarowitz  to  Turkey — remained  in  her  possession  till  1852.  In  that 
year  the  Prince  of  Montenegro  attacked  and  carried  a  fortress  at  the  head 
of  the  Lake  Scutari :  this  act  of  aggression  provoked  Turkey  to  attempt 
the  subjugation  of  Montenegro.  Austria,  and,  more  tardily,  Russia  in- 
r*1191  terferea<  on  behalf  of  the  Montenegrins;  *while  England  and 
L  J  France  advised  Turkey,  without  abandoning  her  de  jure  title 
over  Montenegro,  to  respect  the  quasi  independence  of  that  territory, 
and  on  this  basis  a  dangerous  quarrel,  which  might  have  embroiled  all 
Europe,  was  adjusted.  But  Austria  obtained  the  establishment  of  Con- 
sulates in  Bosnia,  Servia,  and  Herzegovina,  and  other  parts  of  Roumelia; 
and  though  she  did  not  possess  herself  of  Leek  and  Sutorina — the  strips 
of  territory  whereby  Turkish  Herzegovina  touches  the  Adriatic — she 
obtained  a  stipulation  that  Turkey  should  make  no  use  of  them  as  ports, 
and  that  no  Turkish  vessels  should  approach  them. 

(m)  Traite  de  Paix  entre  sa  Majeste"  Impe"riale  Royale  Apostolique  etla  Sublime 
Porte  Ottomane.  Fait  a  Sistow,  le  4  me  Aout,  1791.  (En  lanugue  Franchise  et 
Turque) : — 

Art.  1.  II  y  aura  de*sormais  une  paix  perpetuelle  et  universelle,  par  terre,  sur 
mer,  et  sur  les  rivieres,  entre  les  deux  empires,  leurs  sujets  et  vassaux,  une  auntie" 
vraie  et  sincere,  une  union  parfaite  et  e"troite,  une  abolition  et  amnestie  pleine  et 
ge"ne"rale  de  toutes  les  hostility's,  violences,  et  injures  commises  dans  le  cours  de 
cette  guerre,  par  les  deux  puissances,  ou  par  les  sujets  et  vassaux  de  1'une,  qui  ont 
suivi  le  parti  de  1'autre ;  et  spe"cialement  les  habitans  de  toute  condition  du  Monte- 
ntyre,  de  la  Bosnie,  la  Servie,  la  Vallachie,  et  Moldavie,  qui,  en  vertu  de  cette 
amnistie,  pourront  tous  rentrer  dans  leurs  anciennes  demeures,  possessions  et  droits 
quelconques,  et  en  jouir  paisiblement,  sans  etre  jamais  inquiete's,  molestes,  ni  punis 
pour  s'etre  declares  contre  leur  propre  souverain,  ou  pour  avoir  prctd  hommage  a. 
la  cour  Impe'riale  et  Royale. 

Art.  12.  Et  quanta  1'exercice  de  la  religion catholique  Chre'tienne  dans  1'Empire 
Ottoman,  ses  pretres,  ses  sectateurs,  ses  e"glises  a  entretenir,  ou  a  reparer,  la  liberte" 
du  culte,  et  des  personnes,  la  fre'quentation  et  la  protection  des  lieux  saints  de 
Jerusalem  et  d'autres  endroits,  la  Sublime  Porte  Ottomane  renouvelle  et  confirme, 
d'aprds  la  regie  du  status  quo  strict,  non  seulement  les  privileges  assur6s  par  1'article 
IX.,  du  Trait6  de  Belgrade  &  cette  religion,  mais  aussi  ceux  qui  ont  6t6  poste"rieure- 
ment  conce'de's  par  ses  fermans,  et  autres  actes  e'mane's  de  son  autorite." — Marten's 
Rec.  de  Tr.  (1791),  vol.  v.  p.  246. 


DIFFERENT     KINDS    OF     STATES.  117 

XCV.  The  districts  of  Eastern  Europe  called  Moldavia  and  "VVallachia 
are  two  principalities  situated  between  the  Carpathian  mountains  and  the 
Danube  and  the  Pruth. 

These  principalities,  as  well  as  those  of  Servia  and  Bulgaria,  before 
the  conquest  of  Gallipoli  in  1358,  by  which  Solyman  opened  to  the 
Turks  an  entrance  into  Europe,  had  been  governed  by  Princes  of  their 
own,  tributary,  sometimes  to  Hungary,  and  sometimes  to  Poland,  (n) 

In  1529  these  principalities  submitted  to  the  Porte,  on  condition  of 
obtaining  security  for  their  religion  (which,  like  that  of  Montenegro  and 
Servia,  is  of  the  Greek  church)  and  their  laws,  and  of  being  exempt  from 
all  taxes  save  that  of  a  yearly  tribute  to  the  Sultan. 

These  conditions  were  never  rigidly  adhered  to,  and  the  principalities 
•were  always  in  a  state  of  chronic  revolt  from  Turkey;  but  they  suffered 
more  especially  from  being  the  battle-field  on  which  Russia  and  the  Porte 
contended  for  the  mastery. 

This  is  not  the  occasion  on  which  to  enter  into  the  history  of  the  vari- 
ous fortunes  of  these  principalities.  But  while  these  pages  are  preparing 
for  the  press,  a  most  grave  matter  of  International  Law  has  become  in- 
volved in  the  proposition,  *that  these  Christian  Principalities  are 
Provinces  (with  whatsoever  privileges)  of  the  Turkish  Empire. 
It  has  become  of  great  importance  to  the  welfare  of  Europe  to  ascertain 
in  what  light  Russia,  the  most  powerful  neighbour  of  Turkey,  is  bound 
to  consider  them,  and  what  she  has  herself  declared  to  be  the  limits  of 
the  Russian  and  Ottoman  Empires.  To  answer  the  last  question  first: 
Russia  dictated  her  own  terms  in  the  Treaty  referred  to  by  Count  Nes- 
selrode,  as  sustaining  her  present  demand,  the  Treaty  of  Adrinople, 
1829  j  for,  by  the  3d  Article  of  that  Treaty,  it  is  provided  that  the  Pruth 
sliall  continue  to  be  the  limit  of  the  two  Empires.  The  same  Treaty  pro- 
vided, both  by  the  5th  Article,  and  by  supplemental  annexed  provisions, 
for  the  constitution  of  the  Principalities.  They  are  placed  under  the 
Suzerainete  of  the  Porte,  with  the  guarantee  of  Russia  for  their  liberties 
and  privileges. 

The  next  question  is,  In  what  light  has  Russia  bound  herself  to  con- 
sider these  provinces  ?  The  Treaty  of  Adrinople  answers — as  part  of 
the  Turkish  Empire.  The  commercial  Treaty  between  Russia  and  the 
Porte  in  1846  makes  the  same  reply  still  more  distinctly.  The  16th 
Article  says,  "Les  deux  cours  contractantes,  prenant  en  consideration  que 
parmi  les  provinces  que  font  partie  des  Etats  de  la  Sublime  Porte  les 
principautes  de  Valachie,  de  Moldavie,  et  de  Servie  jouissent  d'une  ad- 
ministration distincte,  sont  con  venues  que  les  marchandises,"  &c.,  &c.(o) 

The  yet  more  recent  Treaty  of  Balta-Liman,  of  the  first  of  May,  1849, 
does  not  annul  the  previous  stipulations  on  this  subject  between  Russia 
and  the  Porte,  but,  on  the  contrary,  by  the  7th  Article,  provides  that 
they  shall  not  be  set  aside. (p) 

(n)  Hist.  Abre"g.  des  Tr.  Koch. :  Trails  entre  la  Porte  Ottomane  etles  Puissances 
Chretiennes  depuis  la  Paix  de  Carlowitz  en  1699  jusqu'au  Traite  de  Bucharest  en 
1812,  t.  IT.  pp.  342,  410,  ed.  Bruxelles,  1838. 

(o)  De  M.  et  De  C.  p.  637,  Treaty  of  Balta-Liman  in  1846. 

(p)  Russia  and  Turkey:  Armed  Intervention  on  the  Ground  of  Religion  con- 
sidered as  a  Question  of  International  Law ;  with  Appendix  of  Documents.  By 
Robert  Phillimore.  London  :  Ridgway,  1853.  Vide  post,  "  Intervention." 


118  PIIILLIMORE    ON    INTERNATIONAL    LAW. 

11  .         *XCVI.  The  executive  government  of  these  provinces  is  that 

-I  of  a  Hospodar  or  Woivode,  elected  by  the  inhabitants.     This 

right  of  election,  and  that  of  administrative  and  legislative  independence 

and  inviolability  of  territory,  constitute  the  principal  privileges  acquired 

by  capitulation  from  the  Porte. 

By  the  Treaty  of  Bucharest,  in  1812,  the  third  part  of  Moldavia  was 
ceded  by  the  Porte  to  Russia.  The  rest  of  Moldavia  and  Wallachia  was 
restored  to  Turkey,  with  a  special  provision  for  the  privileges  of  the 
inhabitants  of  Moldavia,  fa) 

By  the  Treaty  of  Ackerman,  in  1826,  it  was  stipulated  that  the  Hos- 
podars  should  be  nominated  for  seven  years,  and  be  liable  to  be  deposed 
by  the  Suzerain  or  by  the  protecting  power. 

But  by  the  Treaty  of  Adrinople,  signed  three  years  later,  it  was  stipu- 
lated that  the  Hospodars  should  be  appointed  for  life.  By  the  Treaty 
of  Balta-Liman,  of  the  1st  of  May,  1849,  it  is  agreed  that  the  Hospo- 
dars should  be  appointed  by  the  Sultan  for  a  term  not  exceeding  seven 
years ;  that  two  Commissioners  should  be  appointed  for  the  reformation 
of  abuses,  whose  proposed  alterations  were  to  be  submitted  to  the  cabi- 
nets of  St.  Petersburgh  and  the  Porte ;  and  that  the  consent  of  both  of 
them  should  be  obtained  previous  to  their  promulgation,  by  a  hattiscTieriff' 
of  the  Sultan. 

XCVII.  Servia  is  not  exactly  in  the  same  category  as  the  provinces 
which  have  been  first  mentioned. 

Servia  Proper  contains  about  a  million  of  inhabitants ;  but  the  Ser- 
vian race  is  said  to  amount  to  above  five  mi.lions  in  number  and  to  oc- 
cupy one-third  of  the  European  territories  of  Turkey,  and  all  the  south 
of  Hungary. 

In  the  middle  ages  the  Chief  of  this  people  assumed  the  title  of  Em- 
peror of  the  East,  and  was  only  subdued  by  the  united  forces  of  the 
adjoining  nations. 

The  Servian  empire  was  at  last  divided  between  Austria  and  the  Porte. 
By  the  Treaty  of  Passarowitz,  in  1718,  the  Porte  ceded  the  north  of 

11^1  Servia,  with  the  capital  Belgrade,  *to  Austria,  but  regained  this 
J  territory  by  the  Treaty  of  Belgrade  in  1739.  In  1801  the 
struggle  of  the  Servians  for  liberty  began  to  be  aided — at  first  secretly, 
and  after  1809  openly — by  Russia ;  and  the  Treaty  of  Bucharest,  in  1812, 
between  Russia  and  the  Porte,  contained  in  its  eighth  article  a  provision 
securing,  among  other  things,  to  the  natives  the  internal  administration 
of  their  affairs,  on  the  payment  of  a  moderate  contribution  to  Turkey. 
In  1813  the  Servian  insurrection  broke  out  again,  but,  no  longer  assisted 
by  Russia,  was  put  down  with  circumstances  of  horrible  barbarity.  The 
Servians  applied  in  vain  to  the  Congress  of  Vienna  for  the  mediation  of 
Christendom  in  their  favour.  But  the  Greek  insurrection  in  1821,  and 
the  subsequent  independence  of  Greece,  operated  favourably  upon  the 
condition  of  Servia ;  and  it  is  now  recognized  by  the  European  Powers 
as  a  distinct  and  independent  nation,  governed  by  a  native  Prince.  The 

(<?)  The  Treaty  of  Sistowe  secured  Moldavia  to  the  Porte  in  the  same  condition 
as  formerly. 


DIFFERENT  KINDS  OF  STATES.  119 

Turks  have,  indeed,  a  garrison  at  Belgrade :  but  Foreign  Powers  send 
Consuls  to  Servia,  whose  exequatur  emanates  from  the  Sovereign  of  the 
country. 

Beside  the  Treaty  of  Bucharest,  already  mentioned,  between  Russia 
and  the  Porte,  the  Treaties  of  Ackermann  in  1826,(r)  and  of  Adrinople 
in  1829,  are  to  be  consulted  *for  the  national  Status  of  Servia,  I-*ITC-I 
as  well  as  for  that  of  the  Danubian  principalities  of  Moldavia  L 
and  Wallachia.(s) 

XCVIII.  With  respect  to  Montenegro,  the  Danubian  principalities, 
and  Servia,  an  International  question  of  some  delicacy  and  difficulty 
arises — namely,  To  what  extent  the  Protectorate  of  Austria  or  Russia 
over  the  Christian  subjects  of  the  Porte,  in  matters  relating  to  their  reli- 
gion, has  been  allowed  by  custom  or  by  treaty  to  extend  ? 

This  point  will  receive  further  discussion  in  a  later  part  of  this  work, 
when  the  Right  of  Intervention  is  considered. 

XCIX.  In  all  the  foregoing  instances,  though  they  may  exhibit  a 
greater  or  a  less  derogation  from  the  rights  of  independent  Sovereignty 
(excepting  perhaps  the  case  of  Servia),  the  attribute  of  free  and  uncon- 
trolled agency  in  their  external  relations  with  Foreign  States  is  wanting. 

C.  States  that  pay  tribute,  or  stand  in  a  feudal  relation  towards  other 
States,  are,  nevertheless,  sometimes  considered  as  Independent  Sovereign- 
ties. It  was  not  till  1818  that  the  King  of  Naples  ceased  to  be  a  nomi- 
nal vassal  of  the  Papal  See ;  but  this  feudal  relation  was  never  considered 
as  affecting  his  position  in  the  Commonwealth  of  States.  Of  the  same 
kind  some  German  Jurists  appear  to  consider  the  subsisting  relation  be- 
tween Kniphausen  and  Oldenburgh ;  but,  in  fact,  it  is  a  relation  which 
can  hardly  be  said  to  exist  in  these  days,  except  where,  as  in  the  instan- 

(/•)  Extract  from  Convention  between  the  Ottoman  Porte  and  Russia,  signed  at 
Ackermann,  September  25th,  1826. — Acte  separe"  relatif  a  la  Servie: — 

"  La  Sublime  Porte,  dans  1'unique  intention  de  remplir  fidelement  les  stipula- 
tions de  1'Article  VIII.  du  Traite"  de  Bucharest,  ayant  pre"ce"demment  permis  aux 
dispute's  Serviens  a  Constantinople  de  lui  presenter  les  demandes  de  leur  nation, 
sur  les  objets  les  plus  convenables  pour  consolider  la  surete"  et  le  bien-etre  du  pays, 
ces  deputes  avaient  precedemment  expose"  dans  leur  requete  le  voeu  de  la  nation 
relativement  a  quelques-uns  de  ces  objets,  tel  que  la  liberte"  du  culte,  le  choix  de  ses 
chefs,  I'inde'pendance  de  son  administration  interieure,  la  reunion  des  districts  de- 
tache"s  de  la  Servie,  la  reunion  des  diflerents  impSts  en  un  seul,  1'abandon  aux 
Serviens  de  la  regie  des  biens  appartenants  a  des  Musulmans,  a  charge  d'en  payer 
le  revenu  ensemble  avec  le  tribut,  la  liberte"  de  commerce,  la  permission  aux  ne"go- 
ciants  Serviens  de  voyager  dans  les  Etats  Ottomans  avec  leurs  propres  passeports, 
l'e"tablissement  d'hopitaux,  6coles  et  imprimeries,  et  enfin  la  defense  aux  Musul- 
mans, autres  que  ceux  appartenants  aux  garnisons,  de  s'e"tablir  en  Servie.  Tandis 
que  Ton  s'occupait  a  verifier  et  a  regler  les  articles  ci-dessus  specifies,  certains  em- 
pechements  servenus  en  motiverent  1'ajournement.  Mais  la  Sublime  Porte  persis- 
tant  aujourd'hui  encore  dans  la  ferme  resolution  d'accorder  a  la  nation  Servienne 
les  avantages  stipules  dans  1'Article  VIII.  du  Traite  de  Bucharest,  elle  reglera,  de 
concert  avec  les  deputes  Serviens  a  Constantinople,  les  demandes  ci-dessus  men- 
tionnees  de  cette  nation  fidele  et  soumise,  comme  aussi  toutes  les  autres  qui  lui 
seraient  presentees  par  la  deputation  Servienne,  et  qui  ne  seront  point  contraires 
a  la  qualite  de  sujets  de  1'empire  Ottoman." — De  Martens  et  De  Cussy,  Rec.  de 
Traites  et  Conventions,  vol.  iv.  pp.  40,  41. 

(«)  De  Martens  et  De  Cussy,  Rec.  de  Tr.  Treaty  of  Bucharest,  t.  ii.  p.  393. 
Treaty  of  Ackermann,  t.  iv.  p.  40.  Treaty  of  Adrinople,  ib.  p.  223.  Wheaton's 
History,  p.  558. 


120  PHILLIMORE     ON    INTERNATIONAL    LAW. 

ces  of  the  Barbary  States,  there  is  a  direct  and  practical  acknowledgment 
of  a  superior  Sovereignty. 

r*1171       *^'  ^^eventn^y- — The  Status  of  Egypt  with  respect  to  its 
-I  International  relations  is  very  peculiar. 

Under  the  rule  of  the  Mamelukes,  Egypt  had  assumed  the  shape  of 
an  Independent  State,  though  owing  an  allegiance  of  a  feudal  character, 
and  being  tributary  to  the  Porte. 

After  the  destruction  of  the  Mamelekes,  the  then  Pacha  of  Egypt, 
Mehemet  AH,  endeavoured  to  establish  an  entirely  independent  kingdom. 
This  endeavour  led  to  the  Intervention — which  will  be  more  fully  con- 
sidered hereafter — of  the  principal  European  Powers  in  the  conflict 
between  the  Sultan  and  the  Pacha,  and  the  Convention  of  July,  1840. (t) 

On  November  3,  1839,  the  Porte  published  an  Ordinance  for  the  re- 
gulation of  its  provinces  and  of  its  vassal  States,  called  Haiti  Sheriff  of 
Gulhane.(u)  This  Haiti  Sheriff  was  followed  by  the  promulgation  of 
a  collection  of  Laws  called  the  Tanzimat,  and  this,  with  certain  modifi- 
cations, has  been  applied  to  Egypt  by  a  Firman  decore  d'un  Haiti 
Sheriff,(x)  of  July,  1852.  This  Firman  appears  to  overrule  the  Code 
d1 'Abbas,  which  the  present  Pacha  had  established  in  Egypt. 

This  Firman  can  hardly  be  said  to  affect  the  International  relations  of 
the  Pacha;  the  principal  derogation  from  the  Sovereignty  of  the  latter 
consisting  in  the  reservation  to  the  Sultan  of  the  power  as  to  life  and 
death  over  the  subjects  of  the  Pacha.(^) 

f~*1  1 81  *^n  t'ie  Separate  Act  annexed  to  the  Convention,  concluded 
-I  at  London,  on  the  15th  of  July,  1840,  between  the  Courts  of 
Great  Britain,  Austria,  Prussia,  and  Russia,  on  the  one  part,  and  the 
sublime  Ottoman  Porte,  on  the  other,  the  International  Status  of  Egypt 
is  described  in  the  following  articles : — 

"  1.  His  Highness  promises  to  grant  to  Mehemet  Ali,  for  himself  and 

(t)  See  the  Acte  de  Soumission,  in  the  Firman  du  13  Fevrier,  1841 ;  Corres- 
pondence relative  to  the  Affairs  of  the  Levant,  vol.  ii.  735  (London,  1841). 

(u)  See  the  MorningjChronicle,  27  November,  1839  ;  the  Times,  24  October,  1839, 

(x)  This  has  not  yet  been  published,  but  it  describes  itself  as — "Firman  addesse 
a  mon  illustre  et  judicieux  Vizir  Abbas  Halmi  Pacha,  actuellement  et  hereditaire- 
ment  Gouverneur  de  1'^Egypte,  avec  le  rang  eminent  de  Grand  Vizir." 

(y)  The  following  are  extracts  from  this  Firman : — "  Comme  rcsultat  salutaire 
de  ces  sentimens  les  Tauzimati-Hairiye  qui  renferment  les  principes  d'equite  et  de 
justice  que  la  Loi  Sainte  dont  les  bases  sont  inebranlables,  present,  ont  etc  insti- 
tues,  j'ai  reussi  a  faire  executer  ces  Tauzimat  qui  conformement  a  mon  Hatti- 
Sheriff  qui  a  ete  lu,  il  y  a  quelques  temps,  sur  la  Place  de  Ghiulkaneh  assurent 
completement  la  vie,  la  propriete,  et  1'honneur  de  toutes  les  classes  des  sejuts  de 
ma  Sublime  Porte  ctablis  dans  mes  etats. 

"D'apres  les  lois  generales  de  ma  Sublime  Porte,  1'execution  des  criminels  qui 
doivent  etre  mis  &  la  Porte,  soit  en  vertu  de  la  loi  du  talion,  soit  par  mesure  d'ad- 
ministration,  apres  les  formalites  necessaires  d'une  enquete  juridique  et  conforme 
aux  lois  reglementaires  depend  absolument  de  mes  ordres  souverains. 

"  Lorsque  tu  auras  pris  connaissance  des  mes  ordres  souverains,  tu  auras,  &c., 
soin  que  desormais  aucune  autorite,  aucun  employe  n'ait  a  contrevenir  en  la 
moindre  chose  aux  Tauzimat-Hairiye,  et  tu  mettras  en  pratique  Routes  les 
dispositions  et  tous  les  reglemens  qui  sont  contenus  dans  le  statut  susmen- 
tionne.  *  *  * 

"  Ayes-le  pour  entendu  et  ajoutes  foi  au  noble  chiffre  dont  est  orne  le  present 
commandement  Imperial,  done  dans  la  derniere  dizaine  du  mois  Ramazan  1'an 
mil  deux  cents  soixante  huit  (vers  la  mi-Juillet,  1852.) 


STATES    UNDER    A    FEDERAL     UNION.  121 

for  his  descendants  in  the  direct  line,  the  administration  of  the  Pachalic 
of  Egypt;  and  his  Highness  promises,  moreover,  to  grant  to  Mehemet 
Ali  for  his  life,  with  the  title  of  Pacha  of  Acre,  and  with  the  command 
of  the  fortress  of  Saint  John  of  Acre,  the  administration  of  the  southern 
part  of  Syria,  the  limits  of  which  shall  be  determined  by  the  following 
line  of  demarcation : — 

"This  line,  beginning  at  Cape  Ras-el-Nakhora,  on  the  coast  of  the 
Mediterranean,  shall  extend  direct  from  thence  as  far  as  the  mouth  of 
the  River  Seizaban,  at  the  northern  extremity  of  the  Lake  of  Tiberias. 
It  shall  pass  along  the  western  shore  of  that  lake.  It  shall  follow  the 
right  of  the  River  Jordan  and  the  western  shore  of  the  Dead  Sea.  From 
thence  it  shall  extend  straight  to  the  Red  Sea,  which  it  shall  strike  at 
the  northern  point  of  the  gulph  of  Akaba;  and  from  thence  *it 
shall  follow  the  western  shore  of  the  gulph  of  Akaba,  and  the 
eastern  shore  of  the  gulph  of 'Suez,  as  far  as  Suez. 

"3.  The  annual  tribute  to  be  paid  to  the  Sultan  by  Mehemet  Ali 
shall  be  proportioned  to  the  greater  or  less  amount  of  territory  of  which 
the  latter  may  obtain  the  administration,  according  as  he  accepts  the  first 
or  the  second  alternative. 

"5.  All  the  Treaties  and  all  the  Laws  of  the  Ottoman  Empire  shall 
be  applicable  to  Egypt  and  to  the  Pachalic  of  Acre,  such  as  it  has  been 
above  defined,  in  the  same  manner  as  to  every  other  part  of  the  Ottoman 
Empire.  But  the  Sultan  consents,  that  on  condition  of  the  regular  pay- 
ment of  the  tribute  above  mentioned,  Mehemet  Ali  and  his  descendants 
shall  collect — in  the  name  of  the  Sultan,  and  as  the  delegate  of  his  High- 
ness, within  the  provinces,  the  administration  of  which  shall  be  confided 
to  them — the  taxes  and  imposts  legally  established.  It  is  moreover 
understood,  that  in  consideration  of  the  receipt  of  the  aforesaid  taxes 
and  imposts,  Mehemet  Ali  and  his  descendants  shall  defray  all  the 
expenses  of  the  civil  and  military  administration  of  the  said  provinces. 

"  6.  The  military  and  naval  forces  which  may  be  maintained  by  the 
Pacha  of  Egypt  and  Acre,  forming  part  of  the  forces  of  the  Ottoman 
Empire,  shall  always  be  considered  as  maintained  for  the  service  of  the 
State."(z) 


*CHAPTER   III.  [*120] 

STATES   UNDER   A   FEDERAL   UNION. 

GIL  We  now  arrive  at  the  second  branch  of  this  part  of  our  subject — 
namely,  the  consideration  of  several  States  under  a  Federal  Union.  The 
examples  at  present  existing  of  this  description  of  States  are  the  follow- 
ing:— 

1.  The  Germanic  Confederation  (Der  Deutsche  Bund}.  (a\ 

(z)  Hertslet's  Treaties,  vol.  v.  pp.  547 — 549. 

(a)  Deutsches  Staats  und  Buadesrecht  von  Zacharia.  Erster  Theil,  kap.  i.  8.  21 

JULY,  1854.— 9 


122  PHILLIMORE    ON     INTERNATIONAL    LAW. 

2.  The  Confederated  Cantons  of  Switzerland. 

3.  The  United  Eepublics  of  North  America. 

4.  The  United  Republics  of  Central  and  South  America : — namely, 
first,  The  United  Provinces  of  Guatemala,  or  the  Republic  of  Central 
America;  secondly,  The  United  Provinces   of  Rio  de  la  Plata,  or  the 
Argentine  Republic. 

CHI.  States  under  a  Federal  Union  may  be  classed  under  two  prin- 
cipal heads : — First.  Those  which  have  retained  their  Independent  and 
Individual  Sovereignty,  especially  as  to  the  adjustment  of  their  external 
relations  with  other  Nations,  and  belong  to  a  system  of  Confederated 
States  only  for  purposes  of  domestic  and  internal  policy,  and  of  mutual 
assistance  and  defence  (Staatenbunde).  (6) 

But  the  laws  of  this  federal  body  have  only  effect  and  force  in  the 
separate  members  of  the  system  through  the  agency  and  application  of 
the  particular  laws  and  jurisdiction  of  each  individual  government;  there- 
fore, as  far  as  Foreign  Power  is  concerned,  these  Confederated  States 
must  be  considered  as  individually  responsible  for  their  conduct,  and  as 
r*T9ii  *sePara^e  Independent  States.  In  this  class  must  be  ranked  the 
-I  existing  Germanic  Confederations. 

Secondly.  The  Federal  Union  may  be  so  adjusted  that  the  manage- 
ment of  the  external  relations  of  the  respective  members  of  the  Union  be 
absolutely  vested  in  the  Supreme  Federal  Power. 


[*122]  "CHAPTER    IV. 

GERMAN  CONFEDERATION. 

CIV.  The  ancient  Germanic  Empire, (a)  august  and  venerable  for 
many  reasons  to  the  student  of  International  Jurisprudence  and  Public 
Law,  was  virtually  destroyed  by  Napoleon's  Confederation  of  the  Rhine, 
and  must  be  considered  as  formally  extinguished  by  the  Act(6)  of  Abdi- 
cation of  the  Emperor  Francis,  in  August,  1806.  By  this  Act  the 
Electors  were  absolved  from  their  duty  to  him  as  head  of  the  Empire, 
and  his  own  German  dominions  were  incorporated  into  the  Austrian 
States,  over  which  he  henceforth  ruled  as  Emperor  of  Austria. 

CV.  The  Germanic  Confederation  is  to  be  distinguished  from  those 
confederated  States  which  have  indeed  an  Independent  National  Govern- 

(Goottingen,  1841):  "Von  dem  zusammengesetzten  Staate,  der  union,  und  dem 
volkerrechtlichem  Staatenvereine." 

(b)  Zacharia,  ib.  b.  i.  kap.  i.  s.  21.     The  other  class  is  aptly  designated  Bun- 
desstaat. 

(a)  Deutsches  Staats  nnd  Bnndesrecht  Zacharia,  band.  i.  kap.  ii.     "  Die  Zeit  des 
Deutschen  Reichs. — Von  dem  Gesandschaftsrechte  des  Deutschen  Bundes. — Miruss, 
i.  p.  523.     Vattell,  ii.  p.  338,  s.  59. 

(b)  See  the  Act  Marten's  Rec.  des  Traites,  VIII.  p.  498  ;  Wheaton's  History,  p. 
70  ;  Hallam's  Middle  Ages,  vol.  ii.  c.  5 ;  Koch,  Histoire  des  Traites,  c.  i.  s.  1  (par 
Schoell).    The  Germanic  Constitution,  and  still  more  the  Medieval  Councils  of  the 
Church,  are  the  Institutions  -which  have,  in  theory,  made  the  nearest  approach 
which  perhaps  the  world  has  ever  seen  to  an  Universal  International  Tribunal. 


GERMAN     CONFEDERATION..  123 

ment,  but  have  also  a  Central  Federative  Government  which  conducts 
the  International  relations  of  the  Confederacy. 

The  deliberations  of  the  Germanic  Confederacy  are  conducted  by  a 
Diet,  which  sits  at  Frankfort-on-the-Maine,  and  is  the  established  organ 
of  the  Confederacy,  and  the  permanent  congress  of  the  plenipotentiaries 
of  the  States  which  are  members  of  it.(c) 

It  does  not  interfere  with  the  internal  arrangements  of  the  individual 
members  of  the  Confederacy,  except  in  so  far  as  *they  affect  the 
general  interests  of  the  whole  body ;  and  each  of  these  members 
communicates  directly,  and  not  through  the  medium  of  a  Central  Govern- 
ment, with  the  Governments  of  Foreign  Nations. (d) 

CVI-  The  Treaties  which  must  be  consulted  upon  this  subject  are — 
The  Treaty  of  Vienna,  1815 — the  Annexes  to  that  Treaty ;  the  Acte 
Final  ( Wiener  Sclilussacte}  signed  at  Vienna,  May  15,  1820 ;  the  Loi 
Organique,  which  settles  the  military  constitution  of  the  Confederation ; 
the  Act  of  the  Diet  of  the  28th  of  June,  1832,  and  of  the  30th  of  Octo- 
ber, 1834. 

By  the  fourth,  fifth,  and  sixth  articles  of  the  Act  which  settled  the 
Constitution  of  the  German  Confederation  at  the  Congress  of  Vienna,  it 
was  provided,  That,  in  the  Federative  Diet,  all  the  members  vote  by 
their  plenipotentiaries,  either  individually  or  collectively : — 

Votes. 

Austria          .          .          .          .          .          .          .  1 

Prussia  .          .  .  .          .  1 

Bavaria          .          .          .          .          .          .  1 

Saxony  .          .          .          .  .          .  1 

Hanover         .          .          .          .          .          .          .  1 

Wurtemburg.          .          .          .          .          .          .  1 

Baden  ........  1 

Electoral  Hesse       .         .         .         .         .         .  1 

The  Grand  Duchy  of  Hesse       ....  1 

Denmark  (for  Holstein)    .....  1 

The  Netherlands  (for  Luxemburg)      ...  1 

The  Grand  Ducal,  and  Ducal  Houses  of  Saxony  .  1 

Brunswick  and  Nassau     .....  1 

Mecklenburg,  Schwerin,  and  Strelitz  ...  1 

Oldenburg,  Anhalt,  and  Schwartzburg         .          .  1 
Hohenzollern,  Lichtenstein,  Eeuss,    Schaumburg, 

Lippe,  Waldeck,  and  Hesse  Homburg     .          .  1 
The  Free  Cities  of  Lubeck,  Frankfort,  Bremen, 

and  Hamburg     ......  1 

(e)  Total        .       17 
Austria  presides  over  the  Diet.     Each  State  has  a  right  to  make  pro- 

(c)  Zacharia,  ib.  iii.  ss.  223,  11 ;  ss.  261,  1. 

(d)  The  Diplomatic  intercourse  of  the  German  Confederation,  as  such,  with 
other  nations,  will  be  considered  hereafter. — Zachar.  ib.  s.  262. 

(e)  De  Martens  et  De  Cussy,  Rec.  de  Tr.  torn.  iii.  p.  145.    Wheaton  on  Interna- 
tional Law,  vol.  i.  pp.  70,  71. 


124  PHILLIMORE    ON    INTERNATIONAL    LAW. 

194-1  positions,  under  limitations  as  to  time  fixed  by  the  *President. 

L      ,  J  Whenever  Fundamental  Laws   are  to  be  proposed  or  altered, 
when  Organic  Institutions  or  other  arrangements  of  a  common  interest 
are  to  be  adopted,  the  Diet  resolves  itself  into  a  General  Assembly,  and 
the  votes  are  taken  as  follows : — 

Votes. 

Austria          .         .         .  »~  •      .  -  4 

Prussia  .          .          .      >,:.,    ,      .          .          .  4 

Saxony  .          .          .         ....          .  4 

Bavaria          .          .          .          ...          .  4 

Hanover        .......  4 

Wurtemburg 4 

Baden  .          .         .         -.•'.,'..         .         .  3 

Electoral  Hesse       .      •    .         .         .         .         .  3 

The  Grand  Duchy  of  Hesse       .         .         .         .  3 

Holstein        .         .         .         .         ...  3 

Luxemburg   .         .         .         .'  .         .  3 

Brunswick     .         .         .         .  • .      .        :.    >  2 

Mecklenburg  Schwerin     .         .      .   .         ,      *  .  2 

Nassau  .         .         .         .         .  .  •  2 

Saxe- Weimar .  1 

Saxe-Gotha .  1 

Saxe-Coburg .         .         .         .         .         .         .-1 

Saxe-Meiningen       .         .         .         .         .         .  1 

Saxe-Hilburghausen         .....  1 

Mecklenburg-Strelitz        .         ....         .         1 

Oldenburg      .          .  .         .         .         .          1 

Anhalt-Dessau         ......          1 

Anhalt-Bernburg     ......          1 

Anhalt-Coethen       ......  1 

Schwartzburg-Sondershausen     .         .         .         .  1 

Schwartzburg-Rudolstadt .         .         .  .         1 

Hohenzollern-Hechingen  .         .  .         .         1 

Lichtenstein  .          .          .          .          .          .          .  (       1 

Hohenzollern-Sigmaringen         ...         .  1 

Waldeck        .         .         .  .  :       .         .         1 

Reuss  (elder  branch)        .         .         .         .         .         1 

Reuss  (younger  branch)   .       ; .         .         .         .         1 

Schaumburg-Lippe ......         1 

Lippe    ........         1 

Hesse-Homburg      ......         1 

The  Free  City  of  Lubeck          ....         1 

«         "          Frankfort       ....         1 

«         "          Bremen          ....         1 

»         "          Hamburg       .         .         .         .         1 

(/)  Total         .  70 

(/)  De  Martens  et  De  Cussy,  Rec.  de.  Tr.  torn.  iii.  pp.  146,  147.  Wheaton  on 
Internatioaal  Law,  vol.  i.  pp.  71,  72. 


GERMAN    CONFEDERATION.  125 

*CVII.  By  the  sixth  article  of  the  Treaty  of  Paris,  (1814) 
it  was  stipulated  that  the  States  of  Germany  should  be  "  inde- 
pendent,  and  united  by  a  Federal  League." 

By  the  Federal  Act(^)  of  1815,  the  possessions  of  those  Sovereigns 
and  Free  Towns  "which  had  anciently  appertained  to  the  German  Em- 
pire" were  anew  incorporated  into  a  League,  entitled,  "  The  German 
Confederation. "(A) 

By  the  eleventh  article  to  the  Annexe  to  the  Treaty,  it  was  provided, 
that — 

"(Art.  11.)  The  States  of  the  Confederation  bind  themselves  to  defend, 
not  only  the  whole  of  Germany,  but  also  each  individual  State  of  the 
Union,  in  case  it  should  be  attacked,  and  mutually  guarantee  all  their 
possessions  included  in  this  Union. 

"  When  war  is  declared  by  the  Confederation,  no  member  can  engage 
in  separate  negotiations  with  the  enemy,  nor  make  peace,  or  a  truce,  with- 
out the  consent  of  the  others. 

"  The  members  of  the  Confederation,  whilst  reserving  to  themselves 
the  right  of  forming  alliances,  bind  themselves  not  to  contract  any 
engagement  which  shall  be  directed  against  the  security  of  the  confeder- 
ation, or  of  the  individual  States  of  which  it  is  composed. (i  ) 

"  The  Confederated  States  bind  themselves  not  to  make  war  against 
each  other  under  any  pretext,  and  not  to  prosecute  their  controversies 
by  force  of  arms,  but  to  submit  them  to  the  Diet,  which  shall  endeavour 
to  mediate  through  the  medium  of  a  Commission ;  and  if  this  fail,  and 
a  judicial  sentence  be  necessary,  it  shall  be  obtained  by  an  Austregal 
Tribunal  (Austrsegal  Instanz)  properly  constituted,  from  which  there 
shall  be  no  appeal."(&) 

The  Act  of  1815,  so  incorporated  in  the  Treaty  of  Vienna,  was  com- 
pleted by  the  First  Act  of  1820  (May  15.)     This  *Act  con-  r*126-i 
tains  the  following  articles  as  to  their  Mutual  International  Rela-  L 
tions :(?) — 

"Art.  1.  The  Germanic  Confederation  is  an  International  union  (vol- 
kerrechtlicher  verein)  of  sovereign  princes  and  free  cities  of  Germany,  for 
the  preservation  of  the  independence  and  inviolabilty  of  the  States  com- 
prised in  the  Confederation,  and  for  the  maintenance  of  the  internal  and 
external  security  of  Germany. 

"  Art.  2.  This  union  is,  in  its  relations,  a  self-subsiting  Association  of 
States,  mutually  independent  of  one  another,  with  equal  reciprocal  rights 
and  obligations;  but,  in  its  external  relations,  a  collective  power  com- 
bined in  political  unity. 

"Art.  3.  The  extent  and  the  limits  which  the  Confederation  has 
marked  out  for  its  operation  are  defined  by  the  Federal  Act,  which  is 
the  original  compact  and  first  groundwork  of  this  union  :  whilst  it 

(#)  See  Annexe  9  of  the  Final  Act  of  Congress  of  Vienna. 
(h)  Martens,  Nouv.  Rec.  ii.  p.  516. 

ft)  This  clause  is  not  in  the  body  of  the  Treaty,  see  s.  63. 
(k)  Annexe  to  the  Treaty,  De  M.  et  De  0.  L,  p.  145. 

(Z)  Confederation  Germanique. — De  Martens  et  De  Cussy,  Rec.  de  Traites,  &c., 
vol.  iii.  pp.  463,  464.  Wheaton's  History,  p.  445. 


126  PHILLIMORE     ON    INTERNATIONAL    LAW. 

announces  the  object  of  the  confederation,  it  provides  and  determines  at 
the  same  time  its  powers  and  obligations. 

"  Art.  4.  The  power  of  developing  and  perfecting  the  Federal  Act, 
so  far  as  the  completion  of  the  object  therein  set  forth  may  require, 
belongs  to  the  assembly  of  the  members  of  the  Confederation.  The 
resolutions,  however,  to  be  adopted  for  this  purpose  may  not  contravene 
the  spirit  of  the  Federal  Act,  nor  deviate  from  the  fundamental  charac- 
ter of  the  Confederation." 

CVIII.  The  following  articles  respect  the  International  relations  of 
the  Confederation  with  other  States,  both  with  respect  to  its  corporate 
capacity,  and  with  respect  to  the  individual  members  under  its  protection. 
And,  first,  it  should  be  observed,  that  by  the  fiftieth  article  of  the  Acte 
Final  (  Weiner  Schlussacte)  of  1820,  it  is  provided : 

"  That  with  respect  to  Foreign  Affairs  in  general,  it  is  the  duty  of  the 
Diet— 

l~*1271      *"!•  As  the  organ  of  the  .Confederation,  to  watch  over  the 
maintenance  of  peace  and  amicable  relations  with  Foreign 
States. 

"2.  To  receive  the  Envoys  accredited  by  Foreign  States  to  the  Con- 
federation, and  to  nominate,  if  it  should  le  thought  necessary, 
ministers  to  represent  the  Confederation  at  Foreign  Courts. 
"3.  To  conduct,  when  it  may  be  necessary,  negotiations,  and  conclude 

treaties  on  behalf  of  the  Confederation. 

"  4.  To  interpose  with  Foreign  States  good  offices  on  behalf  of  those 
members  of  the  Confederation  who  desire  them,  and  to  employ 
the  same  agency  with  the  separate  States,  members  of  the  Con- 
federation, on  behalf  of  the  Foreign  Governments  who  ask  for 
such  intervention." 

By  the  thirty-fifth  article  it  is  declared,  that  "  The  Germanic  Confeder- 
ation has  the  right,  as  a  collective  body,  to  declare  war,  make  peace,  and 
contract  alliances,  and  negotiate  treaties  of  every  kind ;  nevertheless, 
according  to  the  object  of  its  institution,  as  declared  in  the  second  article 
of  the  Federal  Act,  the  Confederation  can  only  exercise  these  rights  for 
its  own  defence,  for  the  maintenance  of  the  external  security  of  Ger- 
many, and  the  independence  and  inviolability  of  each  of  the  States  of 
which  it  is  composed. 

"  Art.  36.  The  Confederated  States  having  engaged,  by  the  eleventh  arti- 
cle of  the  Federal  Act,  to  defend  against  every  attack  Germany  in  its  entire 
extent,  and  each  of  its  Co-States  in  particular,  and  reciprocally  to  gua- 
rantee the  integrity  of  their  possessions  comprised  in  the  union,  no  one 
of  the  Confederated  States  can  be  injured  by  a  foreign  power,  without 
at  the  same  time,  and  in  the  same  degree,  affecting  the  entire  Confeder- 
ation. 

"  On  the  other  hand,  the  Confederated  States  bind  themselves  not  to 
give  cause  for  any  provocation  on  the  part  of  foreign  powers,  or  to  exer- 
cise any  towards  them.  In  case  any  Foreign  State  shall  made  a  well- 
f*1281  Sroun^e(i  complaint  to  *the  Diet  of  an  alleged  wrong  committed 
J  on  the  part  of  any  member  of  the  Confederation,  the  Diet  shall 
require  such  member  to  make  prompt  and  satisfactory  reparation,  and 


GERMAN    CONFEDERATION.  127 

take  other  necessary  measures  to  prevent  the  disturbance  of  the  public 
peace. 

"  Art.  37.  Where  differences  arise  between  a  Foreign  Power  and  any 
State  of  the  Confederation,  and  the  intervention  of  the  Diet  is  claimed 
by  the  latter,  that  body  shall  examine  the  origin  of  the  controversy,  and 
the  real  state  of  the  question.  If  it  results  from  this  examination  that 
such  State  has  not  a  just  cause  of  complaint,  the  Diet  shall  engage  such 
state,  by  the  most  earnest  representations,  to  desist  from  its  pretentious, 
shall  refuse  its  intervention,  and,  in  case  of  necessity,  take  all  proper 
means  for  preserving  peace.  Should  the  examination  prove  the  contrary, 
the  Diet  shall  employ  its  good  offices  in  the  most  efficacious  manner,  in 
order  to  secure  to  the  complaining  party  complete  satisfaction  and  secu- 
curity. 

"  Art.  38.  Where  notice  received  from  any  member  of  the  Confeder- 
ation, or  other  authentic  information,  renders  it  probable  that  any  of  its 
States,  or  the  entire  Confederation,  are  menaced  with  a  hostile  attack, 
the  Diet  shall  examine  into  and  pronounce  without  delay  upon  the  ques- 
tion whether  such  danger  really  exists;  and  if  determined  in  the  affirma- 
tive, shall  adopt  the  necessary  measures  of  defence. 

"  This  resolution  and  the  consequent  measures  are  determined  in  the 
permanent  counsel  by  a  plurality  of  votes. 

"  Art.  39.  When  the  territory  of  the  Confederation  is  actually  invaded 
by  a  foreign  power,  the  state  of  war  is  established  by  the  fact  of  inva- 
sion ;  and  whatever  may  be  the  ultimate  decison  of  the  Diet,  measures 
of  defence  proportioned  to  the  extent  of  the  danger,  are  to  be  immediately 
adopted. 

"  Art.  40.  In  case  the  confederation  is  obliged  to  declare  war  in  form, 
this  declaration  must  proceed  from  the  general  assembly  determining  by 
a  majority  of  two-thirds  of  the  votes. 

"  Art.  41.  The  resolution  of  the  permanent  council  *declaring 
the  reality  of  the  danger  of  a  hostile  attack  renders  it  the  duty 
of  all  the  confederated  States  to  contribute  to  the  measures  of  defence 
obtained  by  the  Diet.  In  like  manner  the  declaration  of  war,  pronounced 
in  the  general  assembly  of  the  Diet,  constitutes  all  confederated  States 
active  parties  to  the  common  war. 

"  Art.  42.  If  the  previous  question  concerning  the  existence  of  the 
danger  is  decided  in  the  negative  by  a  majority  of  votes,  those  of  the 
confederated  States  who  do  not  concur  in  the  decision  of  the  majority, 
preserve  the  right  of  concerting  between  themselves  measures  of  common 
defence. 

"Art.  43.  Where  the  danger  and  the  necessary  measures  of  defence 
are  restricted  to  certain  States  only  of  the  Confederation,  and  either  of 
the  litigating  parties  demands  the  mediation  of  the  Diet,  the  latter  body 
may,  if  it  deems  the  proposition  consistent  with  the  actual  state  of  things, 
and  with  its  own  position,  and  if  the  other  party  consents,  accept  the 
mediation  ;  provided  that  no  prejudice  shall  result  to  the  prosecution  of 
the  general  measures  for  the  security  of  the  territory  of  the  Confedera- 
tion, and  still  less  any  delay  in  the  execution  of  those  already  adopted 
for  that  purpose. 


128  PHILLIMORE    ON    INTERNATIONAL    LAW. 

"  Art.  44.  War  being  declared,  each  confederated  State  is  at  liberty 
to  furnish  for  the  common  defence  a  greater  amount  of  force  than  is 
required  as  its  legal  contingent ;  but  this  augmentation  shall  not  form 
the  ground  of  any  claim  for  indemnity  against  the  confederation. 

"Art.  45.  Where  in  case  of  war  between  foreign  powers,  or  other 
circumstances,  there  is  reason  to  apprehend  a  violation  of  the  neutral 
territory  of  the  Confederation,  the  Diet  shall  adopt  without  delay,  in  the 
permanent  council,  such  extraordinary  measures  as  it  may  deem  neces- 
sary to  maintain  this  neutrality. 

"  Art.  46.  Where  a  confederated  State,  having  possessions  without 
the  limit  of  the  Confederation,  undertakes  a  war  in  its  character  of  a 
European  power,  the  Confederation,  whose  relations  and  obligations  are 
unaffected  by  such  war,  remains  a  stranger  thereto. 
r*1 30T  *"  ^~rt*  ^'  W^re  such  State  finds  itself  menaced,  or  attacked, 
L  -I  in  its  possessions  not  included  in  the  Confederation,  the  latter  is 
not  bound  to  adopt  defensive  measures,  or  to  take  any  active  part  in  the 
war,  until  the  Diet  has  recognized  in  the  permanent  council  a  plurality 
of  votes,  the  existence  of  a  danger  threatening  the  territory  of  the  Con- 
federation. In  this  last  case,  all  the  provisions  of  the  preceding  articles 
are  equally  applicable. 

"  Art.  48.  The  provision  of  the  Federal  Act,  according  to  which, 
when  war  is  declared  by  the  Confederation,  none  of  its  members  can 
commence  separate  negotiations  with  the  enemy,  nor  sign  a  treaty  of 
peace  or  armistice,  is  equally  applicable  to  all  the  confederated  States, 
whether  they  possess  or  not  dominions  without  the  territories  of  the  Con- 
federation. 

"Art.  49.  In  case  of  negotiations  for  the  conclusion  of  a  peace  or 
armistice,  the  Diet  shall  confide  the  special  direction  thereof  to  a  select 
committee  named  by  that  body,  and  shall  appoint  plenipotentiaries  to 
conduct  the  negotiations  according  to  instructions,  with  which  they  shall 
be  furnished.  The  acceptance  and  confirmation  of  the  treaty  of  peace 
can  only  be  pronounced  in  the  general  assembly  ."(m) 

CIX.  The  Federal  Constitution  was  modified  by  a  decree  of  the  Diet 
at  Frankfort  (30th  October)  1832,  and  still  further  by  the  act  of  1834  j 
but  these  modifications  whether  desirable  or  not,  were  pronounced  by 
the  British  Minister  for  Foreign  Affairs  to  involve  no  point  which  con- 
cerned the  foreign  relations  of  the  different  States  with  other  States, 
and,  therefore,  not  to  found  any  just  ground  for  their  interference.  (M) 
But  in  1834  the  British  Minister  at  the  Germanic  Diet  protested  against 
^  the  occupation  of  Frankfort  *by  Austrian  and  Russian  troops  as 
L  J  a  violation  of  the  Treaty  of  Vienna,  and  said,  "The  G-ermanic 
Confederation  has  been  created  by  the  Treaty  of  Vienna;  and,  as  to  its 

(m)  Martens,  Nouveau  Recueil,  torn.  v.  pp.  467 — 501 ;  De  M.  et  De  C.  i.  p.  463  ; 
Wheaton's  Law  of  Nations,  pp.  457 — 460;  Relations  of  the  Duchies  of  Schleswig 
and  Holstein. — Twiss,  p.  Ill;  Zachar.  ib.  Ill,  s.  261. 

(«)  Wheaton's  History,  460,  468,  470,  472,  483.  Mr.  Bulwer's  Speech  in  the 
House  of  Commons,  August,  2,  1832  ;  and  Lord  Palmerston's  Reply. — Hansard's 
Parliamentary  Debates  (third  series),  vol.  xiv.  pp.  1020 — 1049. 


GERMAN     CONFEDERATION.  129 

relations  with  other  States,  the  rights  of  the  Confederation,  its  powers, 
and  its  obligations  are  to  be  sought  for  in  the  stipulations  alone."(o) 

It  would  not  be  within  the  limits  of  this  work  to  describe  the  various 
attempts  made  to  remodel  the  Germanic  Confederation,  extending  from 
the  month  of  February,  1848,  to  the  15th  May,  1851.  The  end  of  the 
revolutionary  agitation  which  distracted  Germany  during  this  period 
is  the  restoration  of  the  Frankfort  Diet  as  it  had  existed  since  1815. (p) 

CX.  From  what  has  been  stated,  the  following  propositions  appear  to 
be  legitimately  deduced  : — 

First.  That  the  Germanic  Confederation  maintains  with  those  who 
are  members  of  that  league  relations  of  a  special  International  character, 
resting  entirely  upon  the  Federal  Act  of  1815,  and  further  explained  by 
that  of  1820,  as  their  sole  foundation  ;  but  that  all  the  members  of  this 
league  are  governed  in  fheir  relations  with  other  Independent  States  by 
the  general  International  Law. 

Secondly.  That  the  mutual  rights  and  duties  of  the  members  of  this 
Confederation  are  wholly  distinct  from  those  which  exist  between  them 
and  other  States,  not  members  of  the  Confederation. 

Thirdly.  That  the  operation  of  the  duties  and  rights  growing  out  of 
the  constitution  of  the  Confederation  is  not  only  exclusively  confined  to 
the  Independent  Sovereigns  *who  are  members  of  it,  but  also  to 
the  territories  which  belong  to  them,  by  virtue  of  which  they 
were  originally  incorporated  into  the  Germanic  Empire. (5) 

Fourthly.  That  the  admission  of  new  States,  not  being  German, 
into  the  Confederation,  yor  the  admission  of  States  not  sovereignties, 
would  conflict  with  the  principle  and  the  objects  of  the  Confederation. (r) 

If  these  propositions  be  sound  in  point  of  law  and  reason,  it  follows 
that  neither  territories  belonging  to  these  sovereigns  at  that  time,  nor 
subsequently  acquired  territories,  can  be  engrafted  into  this  Confedera- 
tion without  the  consent  of  other  nations,  especially  of  those  who  were 
parties  to  the  Treaty  of  Vienna. 

CXI.  The  events  of  our  own  day  have  called  for  very  important 
practical  applications  of  these  principles  :  first,  in  the  case  of  the  Duchies 
of  Schlewig  and  Holstein(s)  as  to  the  relation  in  which  they  stood  to  the 
Crown  of  Denmark,  on  the  one  hand,  and  to  the  Germanic  Confederation 
on  the  other :  Schleswig  having  been  a  fief  of  the  Danish  Crown  from 
the  period  of  its  first  creation  as  a  Duchy  up  to  the  year  1658,  and 
having  since  that  time  been  annexed  to  the  Gottorp  Duchy,  and  having 
been  afterwards  re-annexed  with  Gottorp  to  Denmark,  and  never  having 
been  directly  connected  with  the  German  Empire ;  Holstein,  on  the  con- 
trary, having  been  a  German  fief. 

Those  who  argued  for  the  German  side  (as  it  was  called)  of  the  ques- 

(o)  Zacharia,  ib.  b.  iii.  kap.  iii.  s.  256  ;  Streitigkeiten  iiber  Auslegung  und  An- 
wendung  der  Verfassung. — Bundeschiedsgericht  von  1834.  The  Relations  of 
Schleswig  and  Holstein,  by  Dr.  Twiss,  p.  119;  1  Wheaton,  Ele"m.,  p.  65. 

(p]  Annual  Register,  vol.  xciii.  p.  2*77. 

(q)  Zacharia,  ib.  band.  iii.  s.  219.    Begriff  und  Zweck  des  Deutschen  Bundes. 

(r)  Zachar.  ib.  s.  222. 

(s)  The  Relations  of  the  Duchies  of  Schleswig  and  Holstein  to  the  Crown  of 
Denmark  and  the  Germanic  Confederation,  by  Dr.  Twiss,  chap.  v.  p.  103. 


130          PHILLIMORE    ON    INTERNATIONAL    LAW. 

tion,  contended  that  because  the  King  of  Denmark  was  subject,  as  Duke 
of  Holstein,  to  the  laws  of  the  Confederation  with  respect  to  that  Duchy, 
therefore  his  Duchy  of  Schleswig  was  also  subject  to  the  same  condition. 
It  was  answered  irresistibly,  it  would  seem,  so  far  as  justice,  practice, 
r #iqq-i  *aiQd  the  reason  of  the  thing  are  concerned,  that  it  might  as  well 

•J  be  said  that  his  province  of  Jutland  was  subject  to  the  Confede- 
ration; that  the  King  of  Holland  by  reason  of  his  Duchy  of  Luxemburg, 
had  not  subjected  Belgium  to  the  Confederation ;  and  that  the  members 
of  it  had  not  pretended  to  interfere  as  to  the  separation  of  Belgium  from 
Holland,  though  they  had  done  so  as  to  the  arrangements  with  respect 
to  the  Duchy  of  Luxemburg.  On  the  establishment  of  the  kingdom  of 
Belgium,  Luxemburg,  was  divided,  half  being  given  to  Belgium,  and 
half  remaining  to  Holland;  the  G-erman  Confederation  being  compen- 
sated by  the  admission  into  its  membership  of  the  newly-created  Duchy 
of  Limburg.(Z) 

Secondly,  the  other  case  which  has  given  rise  to  a  discussion  as  to  the 
practical  application  of  the  principles  of  the  German  Confederation,  has 
been  the  alleged  attempt  or  desire  of  Austria  to  incorporate  her  Hun- 
garian, Croatian,  and  Italian  dominions  into  the  German  Confederation; 
to  which  attempt  the  powers  who  guaranteed  the  Treaty  of  Vienna  would 
have  an  unquestionable  right  to  refuse  their  consent,  and  which  right 
they  might  hold  themselves  bound  by  their  obligations,  both  with  respect 
to  themselves  and  to  the  general  peace  of  the  world,  to  exert,  (w) 
f*1 341  CXII.  II. — The  second  class  of  Federal  States  embraces  those 

-I  which,(ce)  by  the  terms  of  their  confederation,  vest  *the  adjust- 
ment of  their  external  relations  in  a  Supreme  Federal  Power.  ( Unio 
civitatum — etat  compost — Bundesstaat — unirte-  Staaten —  Staaten-  Ver- 
cine.}  The  Achaean  League  and  the  United  Provinces  of  the  Nether- 
lands furnish  memorable  illustrations  of  such  a  confederation. (y) 

CXIII.  To  this  denomination  belongs,  at  the  present  day,  the  Con- 
federation of  the  Swiss  Cantons.^)  The  Thirteen  Cantons  of  Switzerland 

(t)  Zachar.  ib.  s.  221.  II.  D. 

(u)  See  the  note  on  this  subject  of  the  French  and  English  to  the  Austrian 
Government  in  the  Appendix  to  the  second  volume  of  the  "  Annuaire,"  1852-3, 
by  the  editors  of  the  "  Revue  des  Deux  Mondes." 

(a;)  "  In  these  days,  their  union  is  so  entire  and  perfect,  that  they  are  not  only 
joined  together  in  bonds  of  frendship  and  alliance,  but  even  make  use  of  the  same 
laws,  the  same  weights,  coins,  and  measures,  the  same  magistrates,  counsellors, 
and  judges  ;  so  that  the  inhabitants  of  this  whole  tract  of  Greece  seem  in  all  respects  to 
form  but  one  single  city,  except  only  that  they  are  not  inclosed  within  the  circuittof 
the  same  walls :  in  every  other  point,  both  through  the  whole  republic  and  in 
every  separate  state,  we  find  the  most  exact  resemblance  and  conformity." — Hamp- 
ton's Polybius,  vol.  i.  p.  224. 

Polyb.,  Hist.  1.  ii.  c.  iii. ;  Bynkershoek,  Qusest.  Jur.  Publ.  1.  ii.  c.  xxiv. 

Burlamaqui,  Principes  du  Droit  Politique,  pt.  ii.  ch.  i.  a.  43. 

The  Federalist  (American). 

(y)  Manuel  du  Droit  Public  de  la  Suisse. 

Handbuch  der  Schweizerischen  Staaten. 

Wheaton,  E16m.  du  Droit  Intern.  1.  i.  pp.  72,  73. 

Wheaton,  Hist.  pp.  492 — 496. 

(z)  See  Martens,  Nouv.  Rec.  t.  ii.  p.  68  ;  t.  iv.  pp.  161,  273 ;  t.  vii.  p.  173,  and 
De  M.  et  De  C.,  t.  iii.  pp.  14,  38,  89,  197,  242,  for  the  following  treaties  relating  to 
the  Swiss  Confederation .  "  1814, — Paix  de  Paris,  Art.  vi.  3.  La  Suisse  inde"pend- 


GERMAN     CONFEDERATION.  131 

had  for  some  time  previous  to  the  Treaty  of  Westphalia  been  de  facto 
independent,  (a)  but  that  Treaty  formerly  recognised  their  existence  as 
Independent  States.  The  effects  of  the  French  Revolution  in  1789  were 
severely  felt  in  Switzerland.  The  Cantons,  in  consequence  of  the  sepa- 
ration of  various  districts,  were  increased,  first  to  the  number  of  nineteen, 
and  finally  to  the  number  of  twenty-two.  Their  internal  dissensions 
brought  about  an  Act  of  Mediation  under  Buonaparte  in  1803,  and  sub- 
jected them  to  the  invasion  of  the  Allied  Powers  in  1813. 

In  1815  the  claims  of  the  conflicting  Cantons  were  adjusted,  and  the 
Confederation  re-modelled  at  the  Congress  of  Vienna,  (1815;)  and  in  the 
same  year,  (August  7,)  the  number  of  the  Cantons  was  increased  to 
twenty-two  by  the  Federal  Act,  signed  at  Zurich,  and  their  neutrality 
was  recognised  (November  20),  by  an  Act  signed  by  the  Allied  Powers 
at  Paris. 

*CXIV.  According  to  the  Federal  Act  of  1815,  the  Swiss  I-*-IQK-I 
Confederation  consists  of  the  union  of  twenty-two  Cantons.  The  L 
object  of  their  union  is  declared  to  be  the  preservation  of  their  liberty 
and  independence,  security  against  foreign  invasion,  and  the  maintenance 
of  internal  public  tranquillity  and  order.  They  mutually  guarantee  their 
respective  territories  and  constitutions.  Their  Diet  is  formed  by  a  Con- 
gress of  Deputies,  one  being  delegated  from  each  Canton,  and  each  having 
equally  a  single  voice  in  the  deliberations  of  this  common  senate.  It 
assembles  every  year,  alternately,  at  Berne,  Zurich,  and  Lucerne — these 
being  the  Cantons  (Vorort)  in  which  the  executive  power  of  the  Con- 
federation resides  when  the  Diet  is  not  actually  sitting.  The  Diet  has 
the  exclusive  power  of  declaring  war,  of  entering  into  treaties  of  peace, 
commerce,  and  alliance  with  Foreign  States.  These  negotiations,  how- 
ever, require  the  assent  of  three-fourths  of  the  Diet,  though  in  other 
matters  a  simple  majority  suffices  for  the  validity  of  the  resolution. 

It  is  competent,  however,  to  each  Canton  separately  to  conclude  with 
foreign  powers  treaties  which  have  for  their  object  regulations  of  revenue 
and  police;  provided  always  that  they  do  not  conflict  with  the  Federal 
Convention,  the  Existing  Alliances,  or  the  Constitutional  Rights  of  other 
Cantons.  The  Confederation  has  a  common  army  and  treasure,  supported 
by  levies  of  men  and  contributions  of  money,  according  to  fixed  propor- 
tions, from  each  Canton. 

The  Diet  is  responsible  for  the  internal  and  external  security  of  the 
Confederation.  It  appoints  the  commanding  officers,  and  directs  the 
operations  of  the  Federal  army,  and  moreover  nominates  the  Federal 
Ministers  at  Foreign  Courts. 

CXV.  Since  the  year  1830,  the  separate  constitutions  of  each  of  the 
Cantons  has  received  a  more  or  less  democratic  modification,  but  the 

ante  continuera  de  se  gouverner  par  elle-meme."  "  1814,  16  A&ut.  Les  Dix-neuf 
Cantons'  Traite"  d'alliance  pour  la  conservation  de  leur  liberte*  et  independence." 
"1815,  7  Aout.  Act  de  Confederation  entre  les  Vingt-deux  Cantons  Helve"tiques, 
signe"  a  Zurich."  "  1815,  20  Novembre.  Acte  signs"  a  Paris  par  les  ple"nipotenti- 
aires  d'Autriche,  de  France,  de  la  Grande  Bretagne,  de  Prusse,  et  de  Russie,  par 
lequel  la  neutralite  de  la  Suisse  a  e"te  reconnue." 
(a)  Koch.,  Hist,  des  Tr.  i.,  iii. 


132  PHILLIMORE    ON    INTERNATIONAL    LAW. 

attempts  to  alter  the  principle  of  the  Federal  Act  of  1815  have  failed. 
Bale,  Unterwalden,  and  Appenzell  have  been  subdivided,  and  the  sub- 
divisions added  to  the  number  of  the  Confederated  Cantons,  which  is 
thereby  *increased  to  twenty-five;  but  the  number  of  votes  in 
the  Diet  is  still  limited  to  twenty-two,  each  division  of  these 
three  Cantons  enjoying  only  half  a  vote.  Before  the  French  Revolution, 
it  was  competent  to  each  Canton  to  enter  into  a  special  alliance  both 
with  another  Canton  and  with  a  Foreign  State ;(ZA  but  it  is  clear,  from 
what  has  been  stated,  that  no  individual  member  of  this  federal  body, 
since  the  Federal  Act  of  1815,  has  the  character  and  position — or,  as 
civilians  say,  the  persona  standi — of  a  separate  independent  nation. 

CXVI.  This  subject  should  not  be  dismissed  without  the  observation, 
that  one  of  the  Swiss  Cantons,  Neufchatel,  bears  the  title  of  a  Princi- 
pality, and  is  placed  in  some,  though  it  may  be'  doubtful  in  what,  degree 
under  the  Suzerainete  of  the  King  of  Prussia.(c) 

After  the  death  of  Marie  de  Longueville,  Duchess  of  Nemours,  in 
1707,  the  States  of  Neufchatel  transferred  the  fief  of  their  principality 
to  the  King  of  Prussia,  as  the  representative  of  the  House  of  Chalons, 
with  a  reservation  of  their  liberties  and  of  their  Treaties  of  Alliance  with 
the  Swiss  Cantons. 

The  ninth  article  of  the  Treaty  of  Utrecht  recognised  this  act  of  the 
States  of  Neufchatel,  and  so  the  relations  between  Prussia  and  Neuf- 
r*137T  chatel  continued  till  1805,  when  Prussia  *ceded  the  principality 
-I  to  Napoleon.  It  was  restored,  however,  at  the  Peace  of  Paris, 
to  Prussia,  from  whom,  in  1814,  it  received  a  new  constitutional  form 
of  government.  But  Neufchatel  was  subsequently  admitted  into  the 
new  Helvetic  Confederation,  its  relations  to  which  were  defined  by  the 
9th  article(</)  of  the  Acte  (April  7,  1815),  which  reunited  Neufchatel, 
Geneva,  and  Valais  to  the  Helvetic  Confederation,  and  declared  that 
"The  sovereign  state  of  Neufchatel  is  received  as  a  Canton  into  the  Swiss 
Confederation.  This  reception  takes  place  under  the  express  condition 
that  the  fulfilment  of  all  the  duties  which  devolve  upon  the  State  of 
Neufchatel  as  a  member  of  the  Confederation,  the  participation  of  that 
state  in  deliberations  on  the  general  affairs  of  Switzerland,  the  ratification 
and  performance  of  the  resolutions  of  the  Diet,  shall  exclusively  concern 

(J)  Merlin,  Repertoire  de  Jurisprudence,  tit.  "  Ministre  Public." 
Wheaton,  Elem.  i.,  pp.  73,  74.   Annuaire  des  DeuxMondes,  1850,  p.  294 ;  1851-2, 
p.  188. 

(c)  "  Extrait  du  manifesto  public"  par  1'Ambassadeur  du  Roy  de  Prusse  au  sujet 
des  affaires  de  Neufchatel,  1107." — Schmauss,  ii.  p.  1205. 

"  Articles  ge'ne'raux  dresses  et  proposes  au  nom,  etc.,  de  la  Principaute"  de  Neuf- 
chatel et  de  Valangin — agrees  et  accorded  par  1'Ambassadeur  de  S.  M.  le  Roi  de 
Prusse,  1707."— Ib.  p.  1209. 

"Me"moire,  etc.,  1707."— Ib.  pp.  1211,  1212. 

"  Articles  accorded  par  le  Roy  de  Prusse,  Fre"de"ric  I.,  a  la  Ville  de  Neufchatel, 
1707." — Schmauss,  ii.  p.  1213  :  in  which  the  King  of  Prussia  is  described  (p.  1217) 
as  "  Prince  Souverain  de  Neufchatel  et  Valangin." 

In  the  Treaty  of  Utrecht  (1713)  the  authority  of  the  King  of  Prussia  is  fully  re- 
cognised.— Ib.  p.  1361,  and  p.  1369,  art.  ix.  of  that  part  of  the  Treaty  which  con- 
cerns the  relations  of  France  and  Prussia.  The  King  of  Prussia  is  acknowledged 
"pro  supremo  Domino  Principatus  Neo-Castri  et  Vallengice." 

(d)  Martens,  t.  iv.  pp.  168,  170.    Aufnahmsurkunde  des  Cantons  Neuenburg. 


UNITED     STATES     OF     NORTH    AMERICA.  133 

the  government  residing  in  Neufchatel,  without  requiring  any  further 
sanction  or  assent." 

CXVIi.  In  1847-8,  Switzerland,  like  the  rest  of  Europe,  was  agitated 
by  a  civil  war,  with  respect  to  which  the  States  of  Neufchatel  resolved 
to  maintain  a  strict  neutrality.  The  King  of  Prussia  supported  them 
in  this  resolution ;  but  the  extreme  party  constituting  the  then  majority 
in  the  Swiss  Diet  declared  that  this  resolution  was  inconsistent  with  the 
terms  of  the  stipulation  by  which  Neufchatel  was  incorporated  into  the 
union,  (e)  After  undergoing  the  evils  of  a  revolutionary  war,  Neufchatel 
has  returned  to  its  ancient  relations  with  Prussia.(/) 


•CHAPTER    V.  [*138] 

UNITED   STATES  OF  NORTH  AMERICA. 

CXVIII.  The  United  States  of  North  America(a)  furnish  the  greatest 
example  which  the  world  has  yet  seen  of  a  Federal  Government. 

The  Constitution  of  the  United  States  of  North  America  differs  mate- 
rially from  that  of  the  Germanic  Confederation :  the  latter  is  a  league  of 
Sovereign  States  for  their  common  defence  against  external  and  internal 
violence ;  the  former  is  a  Supreme  Federal  Government — it  is,  in  fact,  a 
Composite  State,  the  constitution  of  which  affects  not  only  members  of 
the  Union,  but  all  its  citizens,  both  in  their  individual  and  in  their  cor- 
porate capacities. 

According  to  the  language  of  the  charter  or  act  of  the  Constitution,  it 
was  established  by  "  the  people  of  the  United  States,  in  order  to  form 
a  more  pefect  union,  establish  justice,  ensure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  them  and  their  posterity."  The  legislative 
power  of  the  union  is  vested  in  a  Congress,  consisting  of  a  Senate,  the 
members  of  which  are  chosen  by  the  local  legislatures  of  the  several 
States,  and  of  a  House  of  Representatives,  chosen  by  the  people  in  each 
State. 

The  Executive  Power  is  lodged  in  a  President,  chosen  by  electors  ap- 
pointed in  each  State  according  as  the  legislature  thereof  may  direct. 
The  powers  of  Congress  and  of  the  President,  so  far  as  they  affect  the 
International  relations  *of  the  United  States  with  other  countries,  p.,.-.  qn-i 
are  expressed  in  the  following  articles  of  the  Constitution,  which  L 
was  finally  ratified  by  the  thirteen  States  in  1790 : — (6) 

(e)  Annuaire  Historique  Universe!,  1848-9,  ch.  viii.  p.  515  ;  Suisse,  Ib.  1850,  ch. 
vii.,  p.  487. 

(/)  "  Neufchatel  ist  seit  dem  Wiener  Congress  :  Absehied  ein  souverainer 
(monarchisete'r)  Schweizer,  Canton.1'  Note  of  Morstadt  (1851)  to  his  edition  of 
Kliiber's  Volkerrecht. 

Annnaire  des  Deux  Mondes,  1850,  p.  301. 

(a)  Wheaton's  International  Law  ;  Story's  Commentaries  on  the  Constitution  of 
the  United  States  ;  Kent's  Commentaries  on  American  Law. 

(6)  The  articles  of  the  Confederation  were  finally  ratified  in  1781.  It  was  super- 
seded by  the  Constitution  in  1 790. 


134  PHILLIMORE    ON     INTERNATIONAL    LAW. 


Art.  I.— Sect.  8. 

CXIX.  "1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence  and  general  welfare  of 
the  United  States;  but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States. 

"  2.  To  borrow  money  on  the  Credit  of  the  United  States. 

«  3.  To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes. 

"  4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform  law 
on  the  subject  of  bankruptcies  throughout  the  United  States. 

"  10.  To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations. 

"  11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water." (c) 

Sect.  10. 

"  1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confederation  ; 
grant  letters  of  marque  and  reprisal ;  coin  money ;  emit  bills  of  credit  ; 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts  ; 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  or  grant  any  title  of  nobility. 

"2.  No  State  shall,  without  the  consent  of  the  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  absolutely  ne- 
necessary  for  executing  its  inspection  laws ;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or  exports,  shall  be  for 
l~*14.fn  *^e  use  °^  *fc^e  treasury  °f  tne  United  States;  and  all  such  laws 
-I  shall  be  subject  to  the  revision  and  control  of  the  Congress.  No 
State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agreement 
or  compact  with  another  State,  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as  will  not  admit  of 
delay  ."(d) 

Art.  II.— Sect.  2. 

"  2.  The  President  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the  senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the  advice  and 
consent  of  the  Senate  shall  appoint  ambassadors,  other  public  ministers 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  law  :  but  the  Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers  as  they  think  proper  in  the  Pre- 
sident alone,  in  the  Courts  of  Law,  or  in  the  heads  of  departments. (e) 

(c)  Story's  Commentaries  on  the  Constitution  of  the  United  States,  pp.  xxi.,  xxiii. 
of  "  The  Constitution." 

(d)  Story,  p.  xxiv.  (e)  Ib.  p.  xxvi. 


UNITED    STATES    OF    NOKTH    AMERICA.  135 


Sect.  3. 

"1.  He  shall  from  time  to  time  give  to  the  Congress  information  of 
the  state  of  the  Union,  and  recommend  to  their  consideration  such  mea- 
sures as  he  shall  judge  necessary  and  expedient.  He  may,  on  extraordi- 
nary occasions,  convene  both  houses,  or  either  of  them ;  and  in  case  of 
disagreement  between  them  with  respect  to  the  time  of  adjournment,  he 
may  adjourn  them  at  such  time  as  he  shall  think  proper.  He  shall  re- 
ceive ambassadors  and  other  public  ministers.  He  shall  take  care  that 
the  laws  be  faithfully  executed,  and  shall  commission  all  the  officers  of 
the  United  States."(/) 

Art.  III.— Sect.  1. 

"  1.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  Courts  *as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  judges,  both  of  the 
Supreme  and  Inferior  Courts,  shall  hold  their  offices  during  good  behav- 
iour, and  shall,  at  stated  times,  receive  for  their  services  a  compensation, 
which  shall  not  be  diminished  during  their  continuance  in  omce."(<?) 

Sect.  2. 

"  1.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution, — the  laws  of  the  United  States,  and  trea- 
ties made,  or  which  shall  be  made,  under  their  authority ;  to  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls;  to  all  cases  of 
admiralty  and  maritime  jurisdiction ;  to  controversies  to  which  the  United 
States  shall  be  a  party ;  to  controversies  between  two  or  more  States,  be- 
tween a  State  and  citizens  of  another  State,  between  citizens  of  different 
States,  between  citizens  of  the  same  State  claiming  lands  under  grants  of 
different  States,  and  between  a  State,  or  the  citizens  thereof,  and  foreign 
States,  citizens,  or  subjects. (h\ 

"2.  In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before  mentioned, 
the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to  law  and 
fact,  with  such  exceptions  and  under  such  regulations  as  the  Congress 
shall  make."(i) 

Art.  IV.— Sect.  2. 

"1.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States. (/) 

Sect.  3. 

"  1 .  New  States  may  be  admitted  by  the  Congress  into  this  Union,  but  no 
new  State  shall  be  formed  or  errected  within  the  jurisdiction  of  any  other 
State,  nor  any  State  be  formed  by  the  junction  of  two  or  more  States,  or 

(/)  Story,  p.  xxvi.  (g)  Story,  p.  xxvii. 

(A)  Ib.  (»)  Ib.  p.  xxviii.  (/)  Ib. 


'136  PHILLIMORE    ON    INTERNATIONAL    LAW. 

r*l/ion  parts  of  *States,  without  the  consent  of  the  Legislatures  of  the 
L  -I  States  concerned,  as  well  as  of  the  Congress. (&) 

It  is  remarkable  that  no  provision  on  this  subject  is  to  be  found  in  the 
Articles  of  the  Confederation  finally  ratified  in  1781.  The  contingency 
of  the  establishment  of  new  States  within  the  limits  of  the  Union  seems 
to  have  been  wholly  overlooked  by  the  framers  of  the  instrument  of  the 
Confederation.  Under  the  provisions  of  the  present  article  twelve  States 
have  been  admitted  into  the  Union,  upon  an  equality  with  the  original 
States.  (I) 

«  2.  The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States ;  and  nothing  in  this  Constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States,  or  of  any  particu- 
lar State,  (m) 

Sect.  4. 

"  1.  The  United  States  shall  guarantee  to  every  State  in  this  Union  a 
republican  form  of  government,  and  shall  protect  each  of  them  against 
invasion ;  and  on  application  of  the  legislature,  or  of  the  executive  (when 
the  legislature  cannot  be  convened),  against  domestic  violence. "(n) 

Art.  VI. 

«2.  This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding.' '(o) 

[*143]  *Art.  XI. — AMENDMENTS. 

"  The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  another  State,  or  by  citizens  or  sub- 
jects of  any  Foreign  State."(p) 

CXX.  It  is  clear  from  this  account  of  the  Constitution  of  the  United 
States  of  North  America  that  the  whole  Federal  Body  is  responsible  for 
the  International  acts,  so  to  speak,  of  each  State,  and  of  the  individuals 
composing  them.  For  example,  if  the  government  of  either  of  the  Caro- 
linas  inflict  an  injury  upon  a  foreign  nation,  that  nation  must  direct  its 
complaints  to,  and  seek  its  redress  from,  the  Federal  Government. 

The  proposition  that  each  State  of  the  Union  is  separately  responsible 
for  its  own  misconduct,  but  that  the  attempt  by  a  Foreign  State  to  en- 

(k)  Story,  p.  xxix. — See  opinions  of  the  Attorney-General  of  the  United  States 
(published  at  Washington,  1841,)  vol.  i.  p.  311,  as  to  the  conditions  under  which 
the  State  of  Illinois  entered  the  Union. 

Resolutions  du  Crongres  des  Etats-Unis  pour  1'admission  du  Texas  au  nombre 
des  Etats  de  1'Union  du  22  Decembre,  1845.— Vide  De  M.  et  C.  599. 

(1)  Story,  b.  iii.  c.  xxx.  (TO)  Ib.  p.  xxix.  (n)  Ib. 

(o)  Ib.  p.  xxx.  (p)  Story,  p.  xxxiii. 


CENTRAL    AND     SOUTH    AMERICAN    REPUBLICS.       137 

force  its  claims  for  redress  against  an  individual  State  would  be  resisted 
by  the  whole  Federal  Body,  is  a  proposition  wholly  untenable  in  reason 
or  law.  Joint  responsibility  must  accompany  joint  protection  ;  therefore 
the  strengthening  of  the  hands  of  the  American  Executive  has  been  de- 
sired by  her  ablest  statesmen  and  jurists,  as  well  as  by  Foreign  Powers, 
in  order  that  she  may  be  the  more  readily  able  to  fulfil  her  International 
obligations. (<?) 

CXXI.  The  Central  and  South  American  Republics,  since  T-^AA-, 
the  establishment  of  their  independences,  have  undergone,  and  L 
will  probably  yet  undergo,  frequent  divisions  and  subdivisions.  The 
existing  federal  Republics  are  those  of  Mexico,  of  the  United  States  of 
Rio  de  la  Plata,  or  the  Argentine  Republic,  and  of  the  United  States  of 
Guatemala,  or,  as  it  is  called,  the  Federal  Republics  of  Central  America. 
In  these  Federal  Republics  there  is  a  general  Congress,  which  superin- 
tends the  relations  of  the  Republics  with  Foreign  States.^) 

The  whole  of  America  is  under  the  government  of  Christians,  being 
either  Europeans  or  of  European  descent ;  this  vast  continent  therefore 
must  be  presumed  to  recognize,  not  only  the  obligations  of  general  Inter- 
national Law,  but  the  positive  maxims  of  the  European  code.  This  con- 
tinent is  at  present  parcelled  out  into  the  following  States. 

There  are  seven  Republics  in  North  and  Central  America,  viz. : — 

United  States.  (  0-i    eu  j  -m  j      i  TV  i_-  i 

T\T     •       TT  -i.  j  OA  j        *  J  "I  States,  a  Federal  District 
Mexico,  United  States  of  {    - «    .  •,  D  m     -,    • 

I  of  Mexico,  and  3  Territories. 
Guatemala.  N 

Honduras. 
St.  Salvador. 
Costa  Rica. 

Nicaragua. 

/ 

(q)  Wheaton,  Elem.  vol.  i.  p.  74:  "Puisque  les  relationes  de  ces  Etats  avec  des 
Etats  etrangers,  en  paix  et  en  guerre,  sont  maintenues  par  le  gouvernement  fede- 
ral, tandis  qu'il  est  expresse"ment  defendu  aux  Etats  Isolds  de  1'Union  d'exercer 
ces  actes  de  souverainete  exterieure,  il  est  evident  que  la  souverainete  exterieure 
de  la  nation  reside  exclusivement  dans  le  gouvernement  federal.  L'independance 
de  chaque  Etat  se  trouve  done  sous  ce  rapport  condfondue  dans  la  souverainete  du 
gouvernement  federal,  et  Ton  peut  par  suite  qualifier  1'Union  Americaine  de 
Bundesstaat." 

"  Opinions  of  the  Attorney-General  of  the  United  States,  vol.  i.  Letter  of  the 
Attorney-General,  dated  November  20,  1821,  p.  392.  "The  people  of  the  United 
States  seem  to  have  contemplated  the  National  Government  as  the  sole  and  exclusive 
organ  of  intercourse  with  foreign  nations.  It  ought,  therefore,  to  be  armed  with 
power  to  satisfy  all  fair  and  proper  demands  which  foreign  nations  may  make  on 
our  justice  and  courtesy ;  or,  in  other  words  with  power  to  reciprocate  with 
foreign  nations  the  fulfilment  of  all  moral  obligations,  perfect  and  imperfect, 
which  the  Law  of  Nations  devolves  upon  us  as  a  nation.  In  this  respect,  our 
system  appears  to  be  crippled  and  imperfect." 

See  the  correspondence  relating  to  the  project  of  annexing  Cuba  to  the  United 
States,  laid  before  Parliament  April  11,  1853,  and  especially  the  English  Foreign 
Secretary's  (Lord  John  Russell's)  letter  of  February  16,  1853. 

(r)  Elliot's  American  Diplomatic  Codes,  vol.  ii.  part  iii.  Treaties  with  the  new 
nations  of  South  America. 

Hertslet's  commercial  treatise  contain  nearly  all  the  various  conventions  between 
Great  Britain  and  the  Central  and  South  American  States. 

The  last  treaty  with  the  State  Equator,  signed  at  Quito,  May  3,  1851,  was  laid 
before  Parliament  in  that  year. 

Annuaire  des  Deux  Mondes,  1850,  pp.  885,  1104. 

JULY,  1854.— 10 


138  PHILLIMORE     ON     INTERNATIONAL     LAW. 

r#1  ._     *The  Republics  of  South  America  are  nine  in  number,  as  follows  : 

")  or,  United  States  of  Rio  de  la 

Argentine  Confederation    \  Plata,  14  in  number :  capital, 
J  Buenos  Ayres. 

Peru 

New  Granada. 

Bolivia. 

Chili. 

Venezuela. 

Ecuador.  .  •  *  . 

Paraguay. 

Uruguay  ;  or,  La  Bande  Oriental :  capital,  Monte  Video. 
The  American  monarchies  are  three  in  number,  as  follows  : 

Brazil. 
Mosquitia. 

Hayti.(s) 
The  British  American  provinces  are : — 

Canada  East. 

Canada  West. 

New  Brunswick. 

Nova  Scotia,  with  Cape  Breton. 

Prince  Edward's  Island. 

Newfoundland. 

Honduras. 

CXXII.  It  is  clear  that  no  private  associations(Z)  or  companies  can 
be  now  considered  as  substantive  members  of  the  community  of  States. 
The  ancient  confederation  of  the  Hanse  Towns  is  scarcely  to  be  classed 
under  the  category  of  these  private  companies,  which  had  at  one  time,  as 
a  distinct  Federal  Body,  a  persona  standi  in  International  Law.  No 
analogy,  however,  can  be  derived  even  from  them,  applicable  to  modern 
companies,  associated  for  the  purposes  of  trade. 

The  British  East  India  Company  has  indeed  exercised  sovereign  rights 
in  respect  to  foreign  nations,  has  made  war,  and  concluded  treaties  in  its 
r*i  ifii  own  name  ^th  Indian  princes  ;  *but  this  power  has  been  delegated 

J  to  it  by  the  Crown  and  Parliament  of  England,  and  therefore  the 
responsibility  of  the  International  acts  of  the  Company  rests  upon  Great 
Britain,  as  much  as  the  acts  of  any  other  of  her  accredited  public  agents ; 
and  this  company  has  no  International  status  as  a  substantive  community. 
States  associated,  for  the  purposes  of  trade,  into  a  commercial  league,(w) 
may  have  a  sort  of  International,  or  rather  Public  Law,  regulating  the 
intercourse  between  the  members  of  the  league,(x)  upon  the  principle  of 

(s)  The  empire  of  Hayti  is  in  the  French,  the  republic  of  San  Domingo  in  the 
Spanish  part  of  the  island. 

(t)  Heffters,  ss.  13 — 29.  Wheaton's  Elem.  1.  ii  c.  i.  s.  5,  p.  ix.  Martens,  1.  viii. 
c.  ii.  ss.  260 — 264.  Vattel,  1.  iii.  c.  i.  s.  4.  De  11.  et  de  C.  1.  i.  Index :  Compagnie 
Anglaise  des  Indes. 

(«)  Kliiber,  ss.  150—153.     Heffters,  ss.  8,  93. 

(z)  For  example :  1.  Equality  of  rights  and  obligations  among  the  members. 
2.  Apportionment  of  the  common  burthens  according  to  the  means  and  strength 
of  each  individual  member.  3.  That  the  original  conditions  of  the  association 
cannot  be  altered  without  the  consent  of  every  member,  &c. — Vide  Heffters,  Ib. 


CHANGES     IN    A     STATE.  139 

the  ancient  adage,  "ubi  societas  ibi  jus  est;"  but  States  who  are  not 
members  of  this  League,  are  not  bound  to  regard  those  who  are  such,  as 
clothed,  on  that  account,  with  any  peculiar  privileges  in  their  general 
International  relations. 

CXXIII.  This  observation  is  applicable  to  all  associations  of  States 
which  are  not  founded  upon  universal  principles  of  International  Law, 
but  framed  for  the  advancement  of  some  particular  object ;  such,  for  in- 
stance, as  associations  for  the  suppression  of  the  slave-trade,  or  the  great 
German  commercial  confederations  called  the  Zottverein,  whether  pre- 
sided over  by  Austria  or  by  Prussia. (y) 


-'CHAPTER  VI.  [*147] 

EXTINCTION   OP   A   STATE. 

CXXIV.  A  State,  like  an  individual,  may  die ;  its  corporate  capacity 
may  be  extinguished,  its  body  politic  may  perish,  though  the  individual 
members  of  it  may  survive. 

CXXV.  It  ceases  to  exist  when  the  physical  destruction  of  all  its 
members  takes  place,  or  when  they  all  migrate  into  another  territory — 
events  scarcely  to  be  contemplated  as  possible  in  the  present  times — or 
when  the  social  bond  is  loosed,  which  may  happen  either  by  the  volun- 
tary or  compulsory  incorporation  of  the  nation  into  another  sovereignty, 
or  by  its  submission,  and  the  donation  of  itself,  as  it  were,  to  another 
country.  On  the  happening  of  any  of  these  contingencies, (a)  a  State 
becomes,  instead  q£,  a  distinct  and  substantive  body,  the  subordinate  por- 
tion of  another  society.  The  incorporation  of  Wales,  Scotland,  and  Ire- 
land into  Great  Britain ;  of  Normandy,  Britanny,  and  other  provinces 
into  France,  are  among  the  most  familiar  historical  instances  which  illus- 
trate this  proposition. 


"CHAPTER    VII.  [*148] 

CHANGES   IN   A   STATE. 

CXXVI.    But  a  State  may  undergo  most  important  and  extensive 
changes  without  losing  its  personal ty.(i)     It  may  be  stripped  of  a  por- 

(y)  1  D.  M.  et  C.  Index  to  this  title,  and  Martens,  NOUY.  Rec.  ii.,  434 — 508 
(A.  D.  1841) :  Convention  entre  les  Gouvernemens  des  Etats  appartenans  a  1'asso- 
ciation  douaniere,  Prussienne,  etc. 

(a)  Vattel,  1.  i.  c.  xvi.  194.  Heffters,  b.  i.  s.  24.  Kluber,  pt.  i.  c.  i.  s.  23. 
Rutherforth,  b.  ii.  c.  x.  ss.  12,  13.  Wheaton's  Ele"m.  i.  33. 

(6)  Grotius,  lib.  ii.  c.  ix.  iii.  i.  "  Idem  si  populus.  Dixit  Isocrates,  et  post  eum 
Julianus  imperator,  ciyitates  esse  immortales  id  est,  esse  posse,  quia  scilicet 
populus  est  ex  eo  corporum  genere,  quod  ex  distantibus  constat,  unique  nomini 
subjectum  est,  quod  habet  l%iv  ptav,  ut,  Plutarchus ;  spiritum  unum,  ut  Paulns 
Jurisconsultus  loquitur.  Is  autem  spiritus,  sive  tjij  in  populo  est  vitae  civilis  con- 


140  PHILLIMOBE    ON    INTERNATIONAL    LAW. 

tion  of  its  subjects  and  its  territory  ;  it  may  place  itself  under  the  pro- 
tection of  another  State,  and  be  reduced  to  a  semi-sovereignty ;  thereby, 
indeed,  as  has  been  shown,  materially  affecting  its  external  relations, 
though  retaining,  in  many  respects,  its  corporate  character :  it  may  change 
its  form  of  civil  constitution  or  government  from  a  Republic  to  a  limited 
Monarchy,  from  an  Aristocracy  to  a  Despotism,  or  to  any  imaginable 
shape ;  but  it  does  not  thereby  lose  its  personality,  and  does  not  thereby 
forfeit  its  rights,  or  become  discharged  from  its  obligations.  The  nation 
f*14<n  now  governe(l  by  a  Despot  must  pay  the  debt  which  she  incurred 

-I  under  a  Republican  Government  the  treaty  contracted  *by  a  nation 
when  represented  to  the  rest  of  the  world  by  the  executive  of  a  limited 
Monarchy,  is  equally  binding  upon  her  when  she  has  fallen  under  the 
rule  of  an  Oligarchy. 

CXXVII.  This  vital  principle  of  International  Law  is  a  necessary 
and  principal  consequence  flowing  from  the  doctrine  of  the  moral  person- 
ality and  actual  intercommunion  of  States.  The  Legion,  the  Roman 
jurists  said,  is  the  same  though  the  members  of  it  are  changed;  the  Ship 
is  the  same  though  the  planks  of  it  are  renewed ;  the  Individual  is  the 
same  though  the  particles  of  his  body  may  not  be  the  same  in  his  youth 
as  in  his  old  age,  and  so  "  Populum  eundem  hoc  tempore  putari  qui  ab- 
hinc  centum  annis  fuisset."(c) 

CXXVIII.  The  learned  and  wise  Savigny,  discussing  the  proper  man- 
ner of  cultivating  and  improving  the  municipal  law  of  a  country,  expresses 
an  opinion  pregnant  with  true  philosophy,  when  he  observes  that  there 
is  no  such  thing  as  the  entirely  individual  and  severed  existence  of  man- 
kind, but  that  as  every  individual  man  must  be  considered  as  the  member 
of  a  family,  a  people,  and  a  state;  so  every  age  of  a  people  must  be  re- 
garded as  the  continuance  and  developement  of  times  that  are  past.(rf) 
Every  age  does  not  produce  its  own  world  according  to  its  own  arbitrary 
will  and  for  itself  only,  but  it  does  this  in  indissoluble  intercommunion 
r*l  ^rn  w^  *ne  whole  past.M  Every  age,  therefore,  must  acknowledge, 

-I  *as  it  were,  certain  data,,  the  inheritance  of  necessity,  and  yet 

sociatio  plena  atque  perfecta,  cujus  prima  productio  est  summura  imperium,  ven- 
culum  per  quod  respublica  cohseret,  spiritas  vitalis  quem  tot  millia  trahunt,  ut 
Seneca  loquitur.  Plane  autem  corpora  haec  artificialia  instar  habent  corporis 
naturalis.  Corpus  naturale  idem  esse  non  desinit,  particulis  paulatim,  commu- 
tatis,  una  manente  specie,  ut  Alphenus  ex  Philosophis  disserit."  This  opinion  of 
Alfenus  is  to  be  found  in  the  Digest,  1.  v.  t.  i.  76:  "  De  judiciis  et  ubi  quisque 
agere  vel  conveniri  potest."  A  tribunal  had  been  composed  originally  of  certain 
judges ;  some  of  them  during  the  hearing  of  the  cause  had  retired,  and  others 
being  substituted  in  their  place;  "  Quserebatur,  singulorum  judicum  mutatio 
eandum  rem  an  aliud  judicium  fecisse.  Respondi,  non  modo  si  unus  aut  alter  sed 
et  si  omnes  judices  mutati  essent,  tamen  et  rem  eandum  et  judicium  idem,  quod 
antea  fuisset  permanere." 

(c)  Dig.,  ubi  supra. 

(d)  Shakespere  puts  this  reasoning  into  the  mouth  of  the  Duke'  of  York  : — 

"  Take  Hereford's  rights  away,  and  take  from  time 
His  charters  and  his  customary  rights  ; 
Let  not  to-morrow  then  ensue  to-day: 
Be  not  thyself,  for  how  art  thou  a  king 
But  by  fair  sequence  and  succession  ?" 

Rich.  II.  act  ii.  sc.  1. 

(e)  "  Our  political  system  is  placed  in  a  just  correspondence  and  symmetry,  with 


CHANGES    IN    A    STATE.  141 

not  imposed  upon  it  by  force  :  a  necessary  inheritance,  in  so  far  as  they 
are  not  dependent  upon  the  arbitrary  will  of  the  particular  present;  not 
imposed  upon  it  by  force,  because  they  are  not,  like  the  command  of  a  mas- 
ter to  a  slave,  dependent  upon  the  arbitrary  will  of  any  particular  foreign 
influence  ;  but,  on  the  contrary,  are  the  free  produce  of  the  higher  part 
of  the  nature  of  a  people,  "the  service  of  perfect  freedom"  —  parts  of 
one  whole  continually  existing  and  continually  developing  itself.  Of 
this  higher  part  of  a  people  the  present  age  is  a  member,  which  wills  and 
acts  in  and  with  that  whole  ;  so  that  what  is  transmitted  to  us  from  that 
whole,  may  be  said  to  be  freely  produced  by  this  particular  member  of 
it.  History,  Savigny  concludes,  is  not  therefore  a  mere  collection  of 
examples,  but  the  only  way  to  the  true  knowledge  of  our  own  actual 
status.(f}  Hooker  had  long  before  arrived  at  Savigny's  conclusion: 
"To  be  commanded,"  he  says,  "we  do  consent  when  that  Society  whereof 
we  are  part  hath  at  any  time  before  consented,  without  revoking  the  same 
after  by  the  like  universal  agreement  :  wherefore  as  any  man's  deed  past 
is  good  as  long  as  himself  ^ontinueth  ;  so  the  act  of  a  public  society  of 
men  done  five  hundred  years  sithence,  standeth  as  theirs  who  presently 
are  of  the  same  societies,  because  corporations  are  immortal  :  we  were 
then  alive  in  our  predecessors,  and  they  in  their  successors  do  live 


Applying  this  principle  to  International  relations,  we  learn  that  as  one 
generation  does  not  constitute  a  State,(A)  it*is  not  merely  by  the 
obligations  contracted  by  one  generation  that  the  present  State  is 
bound;  the  engagements  of  the  past,  whether  arising  from  the  implied 
contract  of  long  usage,  or  the  express  letter  of  treaty,  or  the  pledge  of 
the  Executive  Government,  howsoever  plighted,  are  as  stringent  upon 
her  as  those  of  the  present.  The  individual  succeeds  to  rights  and  obli- 
gations which  he  had  no  share  in  obtaining  or  contracting;  and  still  more 
is  this  condition  predicable  of  every  corporate  body.  Nor  is  the  greatest 
of  all  corporations,  the  State,  exempt  from  the  operation  of  a  rule  which 
is  laid  in  the  eternal  constitution  of  things  :  "  Coatus  quilibet,  non  minus 
quam  personse  singulares  jus  habet  se  obligandi  per  se  aut  per  majorem 
sui  partem.  Hoc  jus  transferre  potest  turn  express^  turn  per  consequen- 
tiarn  necessariam,  puta  imperium  transferendo."(i)  The  rule  by  which 
an  individual's  duties  are  discovered  —  namely,  by  considering  the  place 
which  he  occupies  in  the  great  system  of  the  universe  ;  "  qua  parte  loca- 

the  order  of  the  world  and  with  the  mode  of  existence,  decreed  to  a  permanent  body 
composed  of  transitory  parts  ;  wherein  by  the  disposition  of  a  Stupendous  Wisdom, 
so  moulding  together  the  great  mysterious  incorporation  of  the  human  race,  the 
whole  at  one  time  is  never  old,  or  middle-aged,  or  yonng,  but  in  a  condition  of 
unchangeable  constancy  moves  on  through  the  varied  tenor  of  perpetual  decay, 
fall,  renovation,  and  progression."  —  Burke,  v.  79.  Thoughts  on  French  Revolution, 
Ib.  183,  184. 

(/  )  Uber  deu  Zweck  der  Zeitschiift  fur  die  geschichtliche  Rechtswissenschalft.  — 
Savigny,  Vermischte  Schriften,  1  —  110. 

(ff)  Hooker,  Eccles.  Pol.  b.  i. 

(A)  "  Because  a  nation  is  not  an  idea  only  of  local  extent  and  individual  mo- 
mentary aggregation,  but  it  is  an  idea  of  continuity  which  extends  in  time  as  well 
as  in  members  and  in  space."  —  Burke's  Works,  vol.  x.  p.  97  :  Reform  of  Represen- 
tation in  the  House  of  Commons. 

(i)  Grotius,  1.  ii.  c.  xiv.  s.  11,  p.  408. 


142  PHILLIMORE    ON    INTERNATIONAL    LAW. 

tus  es  in  re" — furnishes  an  equally  sound  maxim  for  national  as  for  indi- 
vidual conduct.  "II  ne  seroit  pas,"  says  the  Abbe  Mably,  "moins  su- 
perflu  de  m'arreter  a  prouver  q'un  Prince  est  lie  par  les  engagemens  de 
son  predecesseur :  puisqu'un  Prince  qui  fait  un  Traite  n'est  que  la  de- 
legue  de  sa  nation,  et  que  les  Traites  deviennent  pour  les  peuples  qui  les 
ont  conclus,  des  Lois  qu'il  n'est  jatnais  permis  de  violer."  He  proceeds  to 
cite  a  passage  from  Bodinus  to  the  effect  that  a  king  of  France  is  not  bound 
by  the  treaties  of  his  predecessors ;  because  each  king  of  France  is  only  the 
»  usufructuarius"  of  his  kingdom,  and  does  not  appoint  his  successor,  who 
has  an  absolute  right  to  the  throne ;  and  observes  truly,  "  II  n'est  point 
de  lecteur  qui  ne  sente  tous  les  vices  de  ce  miserable  raisonnement."(&) 

CXXIX.  The  authority  of  D'Aguesseau(^)  and  Montesquieu  further 
strengtnen3  a  position  of  such  paramount  importance  *to  the 
peace  of  the  globe.  The  latter  conclusively  destroys  the  sophis- 
try by  which  it  has  been  attempted  to  chicane  away  the  binding  force  of 
Treaties,  on  the  ground  of  their  having  been  extorted  by  that  superior 
force  which  might  vitiate  a  civil  contract  between  individuals. (m) 

It  might  indeed,  have  been  supposed  that  this  truth  was  too  firmly 
established,  and  the  value  of  it  too  deeply  felt  and  too  generally  recog- 
nised, to  be  liable  to  question  in  these  days.  After  the  recent  overthrow 
of  the  Orleans'  dynasty  in  France,  the  proclamation  of  M.  de  Lamartine 
(1848)  appeared  for  a  moment  to  throw  the  weight  of  France  into  the 
opposite  scale,  as  disavowing  the  obligations  in  the  treaty  of  Vienna, 
chiefly,  it  would  seem,  because  at  the  time  it  was  made,  France  was 
governed  by  a  Monarchical,  and  at  the  time  it  was  disavowed  by  a  Repub- 
lic G-overnment.(n) 

Now  no  doctrine  more  fatal  than  this  to  the  tranquillity  of  the  globe 
can  well  be  maintained — none  which  it  is  more  the  duty  of  every  up- 
holder of  International  Law  to  denounce.  Nor  can  any  doctrine  be 
more  pernicious  to  the  country  itself,  be  it  Monarchical  or  Republican, 
which  propounds  it.  "  Nulla  res,"  said  Cicero,  with  all  the  energy  of 
moral  wisdom,  "  vehementius  Rempublicam  continet  quam  fides."  What 
becomes  of  national  faith  if  it  be  made  to  depend  upon  a  form  of  Govern- 
ment ?  Much  what  would  become  of  individual  faith  if  it  depended 
upon  no  change  happening  in  the  condition  or  age  of  the  person  who 
plighted  it. 

CXXX.  The  importance  of  the  subject  did  not  escape  the  notice  of 
Grotius;  and  I  do  not  know  that,  upon  such  a  point,  a  higher  authority 
can  be  appealed  to  :  "  Neque  refert  quomodo  gubernetur,  regione,  an 
pluriuin,  an  multitudinis  imperio.  Idem  enim  est  populus  Romanus 
sub  regibus,  consulibus,  imperatoribus.  Imo  etiamsi  plenissimo  jure 
r-.-iro-i  regnetur,  populus  idem  erit  qui  ante  erat  *cum  sui  esset  juris, 
J  dum  rex  ei  prasit  ut  caput  istius  populi,  non  ut  caput  alterius 

Ue)  Mably,  De  Droit  Public,  &c.,  t.  i.  p.  Ill,  112. 

(I)  There  are  some  striking  remarks  of  D'Aguesseau,  i.  493.  s.  4,  as  to  the  ob- 
servance of  Treaties. 

(m)  Esprit  des  Lois,  1.  xxvi.  c.  xx. — "  Qu'il  ne  faut  pas  decider  pas  les  principes 
des  lois  civiles  les  choses  qui  appartinnent  an  droit  des  gens." 

(n)  Trois  mois  au  pouvoir  par  M.  de  Lamartine,  p.  75. 


CHANGES    IN    A    STATE.  143 

populi.  Nam  imperiurn  quod  in  rege  ut  in  capite,  in  populo  manet  ut 
in  toto,  cujus  pars  est  caput :  atque  adeo  rege  si  electus  est,  aut  regis 
familia  extincta,  jus  imperandi  ad  populum  redit,  ut  supra  ostendi- 
mus."(o) 

And  in  another  part  of  this  great  work  he  expresses  his  free  and 
manly  opinion  on  this  matter  :  "  Hue  et  ilia  frequens  qusestio  referenda 
est  de  pactis  personalibus  ac  realibus.  Et  siquidem  cum  populo  libero 
actum  sit,  dubium  non  est,  quin  quod  ei  promittitur  sui  natura  reale  sit, 
quia  subjectum  est  res  permanens.  Imo  etiamsi  status  civitatis  in  reg- 
num  mutetur,  manebit  foedus,  quia  manet  idem  corpus  etsi  mutato  capite, 
et  ut  supra  diximus,  imperium,  quod  per  Regem  exercetur,  non  desinit 
imperium  esse  populi. "(p)  With  this  opinion  Heineccius,  in  his  com- 
mentary on  Grotius,  entirely  concurs. 

CXXXI.  An  English  civiliaij  of  considerable  note  in  his  day,  com- 
menting upon  this  passage,  recognises  and  adopts  the  doctrine  which  it 
conveys  :  "All  leagues  and  treaties  are  national;  and  where  they  are 
not  to  expire  within  a  shorter  time,  though  made  with  usurpers,  will  bind 
legal  princes  if  they  succeed,  and  so  vice  versa;  and  a  league  made  with 
a  king  of  any  nation  will  oblige  that  nation  if  they  continue  free,  though 
the  Government  should  be  changed  to  a  Commonwealth,  because  the 
nation  is  still  the  same  though  under  different  Governments."^) 

Vattel,  whom  Lord  Stowell  pronounced  to  be  not  the  least  indulgent 
of  modern  professors  of  Public  Law,(r)  speaks  unhesitatingly  to  the 
same  effect :  "  Puisque  les  traites  publics,  meme  personnels,  conclus  par 
un  roi,  on  par  tout  autre  souverain  qui  en  a  le  pouvoir,  sont  traites 
de  1'Etat,  et  *obligent  la  Nation  entiere,  les  trites  reels,  faits  p^  r .-, 
pour  subsister  independamment  de  la  personne  qui  les  a  con-  L 
clus  obligent  sans  doute  les  successeurs.  L'obligation  qu'ils  imposent  a 
1'Etat  passe  successivement  a  tous  ses  conducteurs,  a  mesure  qu'ils 
prennent  en  main  1'autorite  publique.  II  en  est  de  meme  des  droits 
acquis  par  ces  traites.  Us  sont  acquis  a  1'Etat,  et  passent  a  ses  conduc- 
teurs successifs."(s)  And  in  another  place  he  says,  "Des  qu'une  puis- 
sance legitime  contracte  au  nom  de  1'Etat,  elle  oblige  la  nation  elle 
meme,  et  par  consequent  tous  les  conducteurs  futurs  de  la  societe.  Lors 
done  qu'un  Prince  a  la  pouvoir  de  contractor  au  nom  de  1'Etat,  il  oblige 
tous  ses  successeurs ;  et  ceux-ci  ne  sont  pas  moins  tenus  que  luimeme  a 
remplir  ses  engagements."  (A 

CXXXII.  The  language  of  Bynkershoek  is  still  more  forcible.  In 
one  passage  he  observes:  "Rectedixit  Grotius(it)  jus  Populi  non  deficere 
nisi  deficiat  ipse  Populus.  Forma  autem  Regiminis  mutatEt  non  muta- 
tur  ipse  Populus.  Eademutique  Republica  est,  quamvis  nunc  hoc,  nunc 
alio  modo  regatur:  alioquin  diceres,  Rempublicam  in  statu,  quo  nunc 
est,  exsolutam  videri  pactis  et  debitis  in  alio  statu  contractis  De  debitis 

(o)  Grotius,  1.  ii.  c.  ix.  s.  8.  (p)  Grotius,  1.  ii.  c.  xvi.  s.  16. 

(q)  An  Essay  concerning  the  Laws  of  Nations  and  the  Rights  of  Sovereigns  by 
Matthew  Tindall,  L.  L.  D.  p.  14  (London,  1734). 
(r)  The  Maria,  1  Rob.  Adm.  Rep.  p.  163. 
(s)  Vattel,  Le  Droit  de  Gens,  1.  ii.  c.  xii.  s.  191,  p.  400. 
(t)  Ib.  1.  ii.  c.  xiv.  s.  215.  (u)  De  Jure  Bel.  ix.  1.  ii.  c.  ix.  s.  3. 


144  PHILLIMOIIE    ON     INTERNATIONAL    LAW. 

id  dicere  uon  licere  consentit  Grotius(ar)  De  factis  ut  idem  dicamus, 
eadem  quae  in  debitis  obtinet  ratio  persuaserit."(^)  His  chapter  "  De 
servanda  fide  pactorum  publicorum,  et  an  quae  eorum  tacitae  excepti- 
ones,"  begins  :  "  Pacta  privatorum  tuetur  jus  civile,  pacta  principum 
bona  fides.  Hanc  si  tollas,  tollis  mutua  inter  principes  comniercia,  quae 
oriuntur  e  pactis  expressis,  quin  et  tollis  ipsum  jus  gentium,  quod  oritur 
r*1  ^"1  e  Pac^s  tacitis  et  presumptis,  qua3  ratio  et  usus  inducunt."(z) 
-I  *He  then  proceeds  to  comment  upon  the  sophistry  which  defends 
a  departure  from  the  obligation  of  treaties :  "  Haac  pactis  omnibus  inesse 
credit  clausulam  salutarem,  rebus  sic  stantibus,  atque  adeo  a  pactis  recedi 
posse.  I.  Si  qua  nova  causa,  satis  idonea,  obveniat.  II.  Si  res  eo 
deducta  sit,  unde  incipere  non  posset.  III.  Si  ipsa  pactorum  ratio 
cesset.  IV.  Si  necessitas  ac  utilitas  Reipublicae  aliud  flagitent."(a) 

The  last  pretext  he  denounces  as  a  detestable  machiavellism — "the 
beast  of  many  heads,  Reason  of  State,  the  bane  of  Princes,"  and  charac- 
terizes the  three  former  excuses  as  "  totidem  ruptae  fidei  velamenta :" — 
and  again  in  his  boldest  manner,  "Promissum  igitur  si  me  audias,  etiam 
tune  servandum,  cum  id  servari  Reipublicae  non  expediat,  imo  periculosum 
sit."  (6) 

CXXXIII.  Not  less  emphatic  and  decisive  is  the  language  of  the 
great  Republican  State  of  North  America:  "Nations  are  at  liberty" 
(says  Mr.  Chancellor  Kent)  "to  use  their  own  resources  in  such  manner 
and  to  apply  them  to  such  purposes  as  they  may  deem  best,  provided 
they  do  not  violate  the  perfect  rights  of  other  nations,  nor  endanger  their 
safety,  nor  infringe  the  indispensable  duties  of  humanity.  They  may 
contract  alliances  with  particular  nations,  and  grant  or  withhold  particu- 
lar privileges,  in  their  discretion.  By  positive  engagements  of  this  kind 
a  new  class  of  rights  and  duties  is  created,  which  forms  the  conventional 
law  of  nations,  and  constitutes  the  most  diffusive,  and  generally  the  most 
important  branch  of  public  jurisprudence.  And  it  is  well  to  be  under- 
stood, at  a  period  when  alterations  in  the  constitutions  of  governments 
and  revolutions  in  States  are  familiar,  that  it  is  a  clear  position  of  the 
law  of  nations  that  treaties  are  not  effected,  nor  positive  obligations  of 
any  kind  with  other  powers  or  with  creditors  weakened,  by  any  such 
mutations.  A  State  neither  loses  any  of  its  rights  nor  is  discharged 
r*i  W\  *fr°m  any  °f  ^s  duties  by  a  change  in  the  form  of  its  civil 
J  government.  The  body  politic  is  still  the  same,  though  it  may 
have  a  different  organ  of  communication. "(c) 

CXXXIV.  Puffendorf,  in  his  chapter  "  De  mutatione  et  interitu  civi- 

(x)  Ib.  1.  ii.  c.  ix.  s.  8,  n.  3.  (y)  L.  J.  P.  1.  ii.  c.  xxv. — Variae  Quaestiunculae. 

(z)  Bynkershoek,  Q.  J.  P.  1.  ii.  c.  x.  See,  too,  Burke's  Tracts  on  the  Popery 
Laws,  c.  iii.  in  fine,  as  to  the  ratification  of  the  Treaty  of  Limerick. 

(a.)  Ibid.  (6)  See  too  Cicero,  De  Off.  1.  iii.  c.  v.  6,  11. 

(c)  Kent's  Commentaries  on  American  Law,  vol.  i.  pp.  25,  26. 

Wheaton  (Elem.  i.,  33)  speaks  fully  to  the  same  effect:  "  Un  etat  est  un  corps 
changeant  quant  an  membres  qui  composent  la  societe,  mais  quant  a  la  societe 
merne,  c'est  le  mdme  corps  dont  1'existence  est  perpe"tu6e  par  une  succession  con- 
stante  de  membres  nouveaux.  Cette  existence  continue  tant  qu'aucun  changement 
fondamental  n'a  ete  introduit  dans  1'Etat." 


CHANGES    IN     A     STATE.  145 

tatum,"  adds  the  authority  of  Sweden  to  fortify  these  positions  in  one 
of  the  best  chapters  of  his  treatise  on  "De  Jura  Natura  et  Gentium."  (rf) 

CXXXV.  We  have,  then,  this  opinion  of  the  continuity  of  the  right 
and  obligations  of  a  State  confirmed  by  the  unanimous  authority  of  the 
most  celebrated  jurists  and  statesmen(e)  of  all  countries.  This  accumu- 
lation of  authorities  *must  not  be  regarded  as  an  idle  parade  of 
evidence,  because,  as  has  been  already  observed,  a  proposition 
which  is  maintained  by  the  concurrent  voice  of  eminent  jurists  of  various 
civilized  countries  becomes  ipso  facto,  as  it  were,  a  part  of  International 
Law.(/) 

CXXXVI.  We  arrive  then,  with  confidence  at  the  conclusion,  that 
this  reciprocal  observance  of  good  faith,  whether  it  be  plighted  to  the 
payment  of  debts  or  to  the  fulfilment  of  the  stipulations  of  treaties^)  is 
binding  upon  all  nations:  This  good  faith  is  the  great  moral  ligament 
which  binds  together  the  different  nations  of  the  globe. (&)  Without 
this,  war  would  be,  as  has  been  sometimes  asserted,  the  perpetual  destiny 
of  mankind,  and  that  miserable  fiction  of  shallow  declamation  and  specious 
sophistry  would  be  reality  and  truth. 

CXXXVII.  It  remains  only  to  add  a  proposition  which  is  indeed  a 
corollary  from  the  foregoing  statements.  If  a  nation  be  divided  into 
various  distinct  societies,  the  obligations  which  had  accrued  to  the  whole, 
before  the  division,  are,  unless  they  have  been  the  subject  of  a  special 

(d)  L.  viii.  c.  xiv. 

(e)  "L'unite"  permanente  qui  s'etablit,  et  le  developpemeut  progressif  qui  s'opere 
par  cette  tradition  incessante  des  hommes  aux  hommes,  et  des  generations  aux 
generations,  c'est  la  le  genre  humain;   c'est  son  originalite  et  sa  grandeur;  c'est 
un  des  traits  qui  marquent  1'homme  pour  la  souverainte  dans  ce  monde,  et  pour 
1'immortalite  au  dela  de  ce  monde. 

"  C'est  de  la  qui  derivent  et  par  la  que  se  fondent  la  famille  et  1'etat,  la  propriete 
et  1'heredite,  la  patrie,  1'histoire,  la  gloire,  tous  les  faits  et  tous  les  sentiments  qui 
constituent  la  vie  et  endue  et  perpetuelle  de  Ihumanite  au  milieu  de  V  apparition  si  bornee 
et  de  la  disparition  si  rapide  des  individus  humains. 

"  La  Re'publique  sociale  supprime  tout  cela :  elle  ne  voit  dans  les  hommes  que 
des  etres  isole"s  et  e"phemeres  qui  ne  parissent  dans  la  Tie  et  sur  cette  terre,  theatre 
de  la  Tie,  que  pour  y  prendre  leur  subsistance  et  leur  plaisir,  chacun  pour  son 
compte  seul,  au  meme  titre  et  sans  autre  fin. 

"  C'est  precisement  la  condition  des  animaux.  Parmi  eux,  point  de  lieu,  point 
d'action  qui  surTiTe  aux  indiTidus,  et  s'e"tende  a  tous  ;  point  d'appropriation  per- 
manente, point  de  transmission  htreditaire,  point  d'ensemble  ni  de  progres  dans  la 
Tie  de  1'espece ;  lieu  que  des  individus  qui  paraissent  et  passent,  prenant  en  pas- 
sant leur  part  des  biens  de  la  terre  et  des  plaisirs  de  la  Tie,  dans  la  mesure  de  leur 
besoin  et  de  leur  forcequi  font  leur  droit." — De  la  Democratic  en  France,  par  M. 
Guizot,  pp.  58—60.  (/)  Vide  ante,  Chapter  VII.  p.  58. 

(g)  "  Item  foedera  pacis  et  induciarum  possunt  sub  hoc  capite  collocari,  non 
quatenus  servanda  sunt  postquam  sunt facia;  hoc  enim  potius  pertinet  ad  jus  natu- 
rale." — Suarez,  De  Legibus  et  Deo  Legislatore,  p.  109. 

(A)  "  Je  ne  crois  pas"  (says  Abbe  Mably)  "qu'il  soit  necessaire  de  parler  dans 
cet  ouvrage  de  la  fidelite  scrupuleuse  avec  laquelle  les  Etats  doivent  remplir  leurs 
engagemens ;  je  ne  fais  pas  ici  un  traite  de  droit  natural.  D'ailleurs  que  pour- 
rois-je  aj  outer  a  ce  que  tout  de  savans  hommes  ont  6crit  sur  cette  matiere?  Exe- 
cuter  ces  promesses,  c'est  le  bien  de  la  societe  generale,  c'est  la  base  de  tout  le  bon- 
heur  de  chaque  socie'te'  particuliere ;  tout  nous  le  prouve,  tout  nous  le  de"montre, 
cette  ve"rit6  dont  de  mauvais  raisonneurs  Teulent  donter  est  connue  des  peuples  les 
moins  police's  ;  et  les  princes  malheureux  qui  se  font  un  jeu  de  leurs  sermens, 
feignent  de  la  respecter,  si  leur  ambition  n'est  pas  stupide  ou  brutale." — Tome  i. 
p.  111. 


146  PHILLIMOEE     ON    INTERNATIONAL     LAW. 

agreemen*;)  rateably  binding  upon  the  different  parts :(i)  "Contra 
*evenit"  (as  Grotius  expresses  himself)  "ut  quae  una  civitas 
fuerat,  dividatur,  aut  consensu  mutuo,  aut  vi  bellica,  sicut  corpus  imperii 
Persici  divisum  est  in  Alexandri  successores.  Quod  cum  sit,  plura  pro 
uno  existunt  summa  imperia,  cum  suo  jure  in  partes  singulas.  Si  quid 
autem  commune  fuerit,  id  aut  communiter  est  administrandum,  aut  pro 
rato  portionibus  dividendum."(&)  And  "so"  (says  Mr.  Chancellor 
Kent)  if  a  State  should  be  divided  in  respect  to  territory,  its  rights  and 
obligations  are  not  impaired ;  and  if  they  have  not  been  apportioned  by 
special  agreement,  those  rights  are  to  be  enjoyed,  and  those  obligations 
fulfilled,  by  all  the  parts  in  common."(A  So  Mr.  Justice  Story,  de- 
livering a  judgment  in  the  Supreme  Court  of  the  United  States,  observed : 
"It  has  been  asserted  as  a  principle  of  the  common  law,  that  the  division 
of  an  empire  creates  no  forfeiture  of  previously  vested  rights  of  property ; 
and  this  principle  is  equally  consonant  with  the  common  sense  of  man- 
kind, and  the  maxims  of  eternal  justice. "(m)  Lastly,  it  should  be  ob- 
served, that  this  principle  is  in  viridi  observantid  in  International  prac- 
tice, and  was  incorporated  into  the  treaty  by  which  the  modern  kingdom 
of  Belgium  was  established,  (n) 

(i)  "  Daa  iibrigens  die  Acte  der  Staatsgewalt  eines  friiherern  Herschers,  welche 
des  Verfassung  des  regierten  Staates  entsprechen,  auch'fur  der  Nachfolger  verbind- 
lich  sind,  kann  gewiss  nach  internationalem  Recht  in  keiner  Zweifel  gezogen  wer- 
den." — Heffters,  s.  57,  p.  Ill  ;  Zacharia,  Staats  und  Bundesrecht,  s.  58. 

(k)  Grotius,  1.  ii.  c.  ix.  s.  10,  p.  327. 

(1]  Kent's  Commentaries,  vol.  i.  p.  25. 

(m)  Terrett  and  others  v.  Taylor  and  Others,  ix.,  Cranch's  (American)  Reports , 
50;  citing  Kelly  v.  Harrison,  2  John.  C.  29  ;  Jackson  v.  Lunn,  5  John.  C.  109 
(American)  ;  Calvin's  Case,  7  Co.  27. 

(n)  Wheaton's  Hist.  546. 


PART     THE     TRIED. 


*CHAPTEK    I.  [*159] 

OBJECTS   OF  INTERNATIONAL  LAW. 

CXXXVIII.  The  Sources  and  the  Subjects  of  International  Law 
having  been  stated,  it  remains  to  consider  the  objects  of  this  system  of 
jurisprudence;  that  is,  the  rights  which  are  to  be  ascertained,  protected, 
and  enforced  by  this  law.  (a) 

CXXXIX.  These  rights  flow  as  moral  and  logical  consequences  from 
the  positions  laid  down  in  the  first  chapter  with  regard  to  the  individuality 
and  intercommunion  of  States,  and  from  the  definition  of  a  State  in  the 
second  chapter.  Some  of  these  rights  concern  more  immediately  the  in- 
ternal and  domestic,  others  the  external  and  foreign  condition  of  a  State. 
Moreover,  the  rights  of  nations,  like  the  rights  of  individuals,  admit  of 
a  general  division  into  rights  which  relate  to  persons,  to  things,  and  to 
the  mode  of  their  enforcement. 

CXL.  These  are  rights  properly  so  called — rights  stricti  juris ;  but 
the  constant  intercourse  and  increasing  civilization  of  nations  has  given 
rise  to  a  usage  and  practice  which  greatly  mitigates  the  severity  with 
which  these  rights,  *abstractedly  considered,  might  be  exercised,  r#^  ™-, 
both  with  respect  to  the  foreign  community,  in  its  aggregate  L 
capacity,  and  with  respect  to  the  persons  of  the  individual  members 
belonging  to  it.  This  usage  is  called  coinitas  gentium — the  comity  of 
nations — droit  de  convenance. 

CXLI.  With  regard  to  the  intercourse  of  individual  members  of  dif- 
ferent States,  this  COMITY  has  been  suffered  to  grow  up  into  what  may 
be  termed  a  jus  gentium  privatum;  and  which  requires,  on  account  of 
its  magnitude  and  importance,  a  separate  and  distinct  notice  in  another 
part  of  this  work. 

CXLII.  With  regard  to  a  State  in  its  aggregate  capacity,  questions 
of  comity  being  much  fewer  in  kind,  and  rarer  in  occurrence,  may  be 

(a)  "Jus  gentium  est  sediutn  occupatio,  aedificatio,  munitio,  bella,  captivitates, 
servitutes,  postliminia,  foedera,  paces,  inducise,  legatorum  non  violandorum  religio, 
connubia  inter  alienigenas  prohibita.  Hoc  inde  jus  gentium  appellatur,  quia  eo 
jure  omnes  fere  gentes  utuntur." — Decret.  i.,  Dist.  i.  c.  ix, 


148  PH ILL! MORE     ON     INTERNATIONAL     LAW. 

conveniently  mentioned  and  distinguished  in  the  general  treatment  of 
rights  properly  so  called. 

CXLIII.  But  with  regard  to  both,  the  fundamental  distinction  be- 
tween the  usage  of  comity  and  the  right  stricti  juris  must  never  be  for- 
gotten.^) 

f*im  *The  violation  of  rights  stricti  juris  may  be  redressed  by 
J  forcible  means,  by  the  operation  of  war,  which  in  the  commu- 
nity of  nations  answers  to  the  act  of  the  judicial  and  executive  power 
in  the  community  of  individuals.  But  the  departure  from  the  usage  of 
comity  cannot  be  legally  redressed  by  such  means.  The  remedy,  where 
expostulation  has  failed,  must  be  a  corresponding  reciprocity  of  practice 
on  the  part  of  the  nations  whose  subjects  are  so  treated.  "Illud  quoque 
sciendum  est,"  observes  Grotius;  "si  quis  quid  debet,  non  exjustitia 
propria,  sed  ex  virtute  alia,  puta  liberalitate,  gratia,  misericordia,  dilec- 
tione,  id  sicut  in  foro  exigi  non  potest,  ita  nee  armis  deposci."(c)  It  is, 
however,  often  a  question  of  some  nicety  and  difficulty  to  ascertain  to 
which  class  an  asserted  claim  belongs,  because  the  usage  which  had  its 
origin  in  the  precarious  concession  of  Comity  may  be,  and  in  many  in- 
stances has  been  transferred  through  uninterrupted  exercise  and  the  lapse 
of  time,  into  the  certain  domain  of  Right.(e?) 

(6)  "Non  minus  sollicite  separavimus  ea  quse  juris  sunt,  stricte  ac  proprie  dicti, 
unde  restitutionis  obligatio  oritur,  et  ea  quas  juris  esse  dicuntur,  quia  aliter  agere 
cum  alio  aliquo  rectae  rationis  dictate  pugnat." — Grot.  Proleg.  s.  41. 

In  the  case  of  The  Maria,  Lord  Stowell  observes  (speaking  of  Art.  12  of  the 
Order  of  Council,  1664,  which  directs,  "That  when  any  ship,  met  withal  by  the 
Royal  Navy  or  other  ship  commissionated,  shall  fight  or  make  resist,  the  said  ship 
and  goods  shall  be  adjudged  lawful  prize:")  "I  am  aware  that  in  those  orders 
and  proclamations  are  to  be  found  some  articles  not  very  consistent  with  the  law 
of  nations  as  understood  now,  or  indeed  at  that  time,  for  they  are  expressly  cen- 
sured by  Lord  Clarendon.  But  the  article  I  refer  to  is  not  of  those  he  reprehends  ; 
and  it  is  observable  that  Sir  Robert  Wiseman,  then  the  King's  Advocate-General, 
who  reported  upon  the  Articles  in  1673,  and  expresses  a  disapprobation  of  some 
of  them  as  harsh  and  novel,  does  not  mark  this  article  with  any  observation  of 
censure.  I  am  therefore  warranted  in  saying  that  it  was  the  rule,  and  the  undis- 
puted rule  of  the  British  Admiralty.  I  will  not  say  that  that  the  rule  may  not  have 
been  broken  in  upon  in  some  instances  by  considerations  of  comity  or  of  policy,  by 
which  it  may  be  fit  that  the  administration  of  this  species  of  law  should  be  tem- 
pered in  the  hands  of  those  tribunals  which  have  a  right  to  entertain  and  apply 
them ;  for  no  man  can  deny  that  a  State  may  recede  from  its  extreme  rights,  and 
that  its  supreme  councils  are  authorised  to  determine  in  what  cases  it  may  be  fit 
to  do  so,  the  particular  captor  having  in  no  case  any  other  right  and  title  than 
what  the  State  itself  would  possess  under  the  same  facts  of  capture." — 1  Rob.  Ad. 
Rep.,  367,  368. 

And  again,  further  on  in  the  same  case,  he  says:  "It  is  lastly  said,  that  they 
have  proceeded  only  against  the  merchant  vessels,  and  not  against  the  frigate, 
the  principal  wrong-doer.  On  what  grounds  this  was  done — whether  on  that  sort 
of  comity  and  respect  which  is  not  unusually  shown  to  the  immediate  property  of 
great  and  august  Sovereigns,  or  how  otherwise,  I  am  again  not  judicially  informed  ; 
but  it  can  be  no  legal  bar  to  the  right  of  a  plaintiff  to  proceed,  that  he  has  for 
some  reason  or  other  declined  to  proceed  against  another  party,  against  whom  he 
had  an  equal  or  possibly  a  superior  title." — Ib.  p.  376. 

"De  officiis  innoxice  utilitatis,  quse,  si  primum  illorum  originem  spectaveris,  sunt 
imperfecta,  per  ea,  quse  accedunt,  autem  in  perfecta  mutari  atque  transire  possunt; 
paullo  difficilior  est  disquisitio." — De  Necessitate  et  Usu  Juris  Gentium  Disscrtatio, 
c.  ii.  s.  17. — Pestel. 

See  the  part  of  this  work  which  relates  to  COMITY  for  distinction  between  Jus 
Gentium  and  Jus  inter  Gentes. 

(c)  Grotius,  1.  ii.  c.  xxii.  s.  16.  (d)  Vide  ante,  p.  11. 


RIGHTS      OF      INDEPENDENCE,      ETC.  149 

"CHAPTER   II.  [*162] 

RIGHTS   OF   INDEPENDENCE   AND   EQUALITY. 

CXLIV.  Some  of  the  rights  of  nations  appear  to  flow  more  directly 
from  the  first,  and  some  more  directly  from  the  second  of  those  proposi- 
tions which  have  been  laid  down  as  together  constituting  the  basis  of 
International  Law. (a) 

CXLV.  From  the  first  proposition — namely,  that  States  are  recognised 
as  free  moral  persons — seem  to  be  more  especially  derived  the  rights  in- 
cident to  INDEPENDENCE,  which  are  the  following: — 

1.  The  right  to  a  Free  Choice,  Settlement,  and  Alteration  of  the  In- 
ternal Constitution  and  Government  without  the  intermeddling  of  any 
foreign  State. 

2.  The  right  to  Territorial  Inviolability,  and  the  free  use  and  enjoy- 
ment of  Property. 

3.  The  right  of  Self-preservation,  and  this  by  the  defence  which  pre- 
vents as  well  as  by  that  which  repels  attack. 

4.  The  right  to  a  free  development  of  national  resources  by  Commerce. 

5.  The  right  of  Acquisition,  whether  original  or  derivative,  both  of 
Territorial  Possessions  and  of  Rights. 

6.  The  right  to  absolute  and  uncontrolled  jurisdiction  over  all  persons 
and  things  within,  and  in  certain  exceptional  cases  without,  the  limits  of 
the  territory.     Under  this  head  may  be  considered  the  status  of  Chris- 
tians in  Mahometan  or  Infidel  countries,  not  being  subjects  of  those 
countries,  and  the  question  of  Extradition  of  criminals. 

*CXLVI.  The  limitations  which  the  abstract  Rights  of  one  r^-i^oT 
nation  may  receive  in  their  practical  exercise,  from  the  existence  L 
of  similar  Rights  in  another  nation,  will  be  considered  in  a  chapter  on 
the  doctrine  of  INTERVENTION. 

CXLVII.  From  the  second  proposition — namely,  that  each  State  is 
a  member  of  an  Universal  Community — seem  to  be  more  especially 
derived  the  Rights  incident  to  EQUALITY,  which  are  the  following : — 

1.  The  Right  of  a  State  to  afford  protection  to  her  lawful  subjects 
wheresoever  commorant ;  and  under  this  head  may  be  considered  the 
question  of  debts  due  from  the  Government  of  a  State  to  the  Subjects  of 
another  State. 

2.  The  Right  to  the  Recognition  by  Foreign  States  of  the  National 
Government. 

3.  The  Right  to  External  marks  of  Honour  and  Respect. 

4.  The  Right  of   entering  into  International  Covenants  or  Treaties 
with  Foreign  States. 

(a)  Title  ante,  p.  9. 

Kaltenborn,  kap.  v.  s.  9:  Versuch  einer  wissenschaftlichen  Systematick  des 
Volkerrechts. 


150  PHILLIMORE    ON    INTERNATIONAL    LAW. 


[*164]  *CH  AFTER    III. 

RIGHT   TO   A   FREE   CHOICE   OF   GOVERNMENT. 

CXLVIII.  I.  We  will  now  consider  the  rights  which  flow  asnecessary 
consequences  from  the  INDEPENDENCE  of  States. 

And,  first,  in  the  rank  of  internal  and  domestic  rights,  is  the  liberty 
incident  to  every  Independent  State,  of  adopting  whatever  form  of 
government,  whatever  political  and  civil  institutions,  and  whatever  rulers 
she  may  please,  without  the  interference  or  control  of  any  foreign  power. 
This  elementary  proposition  of  International  Law  is  so  unquestionable 
that  it  would  be  superfluous  to  cite  authorities  in  support  of  it. (a) 

CXLIX.  This  proposition,  nevertheless,  however  true  and  however 
important,  generally  speaking,  is  not  without  some  limitations  in  its 
practical  application ;  because,  rights  on  the  part  of  other  States,  members 
of  the  same  system,  may  control,  to  a  certain  extent,  the  right  of  unli- 
mited liberty  generally  incident  to  a  State  in  the  establishment  of  its 
government,  as  the  right  of  an  individual  in  society  to  perfect  liberty  is, 
to  a  certain  extent,  limited  by  a  similar  right  in  his  neighbour.  The 
limitation  of  which  this  right  is  susceptible  will  be  discussed  hereafter 
in  the  chapter  on  INTERVENTION. 


[*165]  "CHAPTER  IV. 

TERRITORIAL   INVIOLABILITY  —  NATIONAL  POSSESSIONS. 

CL.  II.  —  A  State,  like  an  Individual,  is  capable  of  possessing  property. 
The  property  of  a  State  is  marked  by  the  same  characteristics  relatively  to 
other  States,  as  the  property  of  individuals  relatively  to  other  individuals; 
that  is  to  say,  it  is  exclusive  of  all  foreign  interference,  and  susceptible 
of  free  disposition.  (a) 

This  property  consists  of  Things  (corpora),  and  of  Rights  to  things 
(jura)  ;  or,  in  other  words,  it  consists  of  things  divided  into  those  which 
are  corporal  or  incorporeal,  movable  or  immovable  (i-es,  bona, 


(a)  It  is  nowhere  more  faithfully  enunciated  than  in  Giinther,  i.  284,  ss.  6,  7  : 
"  Keine  nation  ist  befugt,  sich  in  die  handlungen  der  andern  zu  mischen,  am 
ivmigsten  in  die  innere  Staatsverfassung."  The  principle  is  recorded  in  many 
treaties:  e.  g.,  Treaty  of  the  Pyrenees,  1659,  (Art.  60  —  France  promises  not  to  in- 
terfere in  the  affairs  of  Portugal  ;)  Peace  of  Lubeck,  1629,  (Arts.  2,  3  —  the  Emperor 
of  Germany  takes  a  similar  engagement  as  to  Denmark  —  a  reciprocal  one  being 
taken  by  Denmark;)  Peace  of  Neustadt,  1721,  (Art.  7  —  Russia  makes  a  like  pro- 
mise with  respect  to  Sweden.)  During  the  last  twenty  years  most  of  the  great 
European  powers  have,  on  various  occasions,  formally,  at  least,  promulgated  the 
same  doctrine.  Vide  post,  "  INTERVENTION  —  Balance  of  Power." 

(a)  Heffters,  s.  64. 

(b)  "  Cum  pupillus  a  tutore  stipulatur  rem  salvam  fore,  non  solum  quae  in  patri- 
monio  habet,  sed  etiam  quae  in  nominibus  sunt,  ea  stipulatione  videntur  contineri." 
—  Dig.  1.  xlvi.  t.  vi.  9. 

"In  bonis  autem  nostris  computari  sciendum  est  non  solum  quae  dominii  nostri 
sunt,  et  si  bona  fide  a  nobis  possideantur  vel  superficiaria  siut.  yEque  bonis  ad- 


TERRITORIAL      INVIOLABILITY.  151 

As  in  the  case  of  Individuals,  certain  things  belong  by  their  nature  so 
equally  to  every  person,  that  they  are  incapable  of  being  appropriated  by 
any  one  person ;  so  in  the  case  of  States,  certain  things  belong  so  equally 
to  all  communities,  as  to  be  incapable  of  being  appropriated  by  any  one 
of  them  (extra  commercium — extra  patrimonium.*) 

All  these  Things  and  Rights  taken  together  would  be  designated  by 
the  Roman  law  "  universitas." (c)  At  present  *we  are  concerned 
only  with  that  portion  of  this  collective  whole  which  relates  to 
real  or  territorial  rights,  and  more  especially  with  the  right  which  flows 
from  the  above-mentioned  characteristic  of  exclusiveness — namely,  the 
Right  of  Territorial  Inviolability. 

CLI.  A  State  in  the  lawful  possession  of  a  territory  has  an  exclusive 
right  of  property  therein,  ^  and  no  stranger  can  be  entitled,  without  her 
permission,  to  enter  within  her  boundaries,  much  less  to  interfere  with 
her  full  exercise  of  all  the  rights  incident  to  that  supreme  dominion, 
which  has  obtained  from  jurists  the  appellation  of  dominium  eminens. 

CLII.  No  individual  proprietor  can  alienate  his  possessions  from  the 
State  to  which  they  belong,  and  confer  the  property  of,  or  the  sovereignty 
over,  them  to  another  country. (c/)  Whether  and  to  what  extent  it  may 
be  competent  to  the  sovereign  of  a  territory  to  alienate  any  portion  of 
it  will  be  hereafter  considered. 

CLIII.  This  general  principle  of  dominium  eminens  is  applicable  to 
all  possessions,  whether  acquired,  1,  by  recent  acquisition,  through  the 
medium  of  discovery  and  lawful  occupation ;  2,  by  lawful  cession  or 
alienation ;  3,  by  conquest  in  time  of  war,  duly  ratified  by  treaty ;  or, 
4,  by  prescription. 

CLIV.  National  Territory  consists  of  water  as  well  as  land ;  and, 
in  order  to  examine  carefully  the  former  species  of  possession,  we  must 
consider  whether,  and  to  what  extent,  and  under  what  limitations,  the 
following  waters  may  be  the  objects  of  national  property  and  dominion  : — 

1.  Rivers  and  Lakes. 

2.  The  Open  Sea. 

3.  The  Narrow  Seas. 

4.  The  British  Seas. 

5.  The  Straits. 

6.  Portions  of  the  Sea. 

numerabitur,  etiam  si  quid  est  in  actionibus,  petitionibus,  persecutionibus :  nam 
hsec  omnia  in  bonis  esse  videntur." — Ib.  1.  t.  xvi.  s.  49. 

"Pecunice  verbum  non  solum  numeratam  pecuniam  complectitur:  vemmomnem 
omnino  pecuniam,  hoc  est  omnia  corpora :  nam  corpora  quoque  pecuuias  appella- 
tione  contineri  nemo  est  qui  ambiget." — Ib.  178. 

"Pecunice  nomine  non  solum  numerata  pecunia;  sed  omnes  res,  tarn  soli  quam 
mobiles,  et  tarn  corpora  quam  jura  continentur." — Ib.  222. 

(c)  "  Bonorum  appellatio,  sicut  haereditatis,  universitatem  quandam  ac  jus  succes- 
sionis,  et  non  singulas  res  demonstrat." — Dig.  lib.  1.  t.  xvi.  208. 

(d)  De  Garden  Traite  de  Diplomatic,  t.  i.  p.  387. 


152  PHILLIMORE     ON    INTERNATIONAL    LAW. 


[*167]  'CHAPTER  V. 

PROPERTY  OF  A  STATE — RIVERS. 

CLV.  No  difficulty  can  arise  with  respect  to  Rivers  and  Lakes  entirely 
enclosed  within  the  limits  of  a  State ;  but  questions  of  some  difficulty 
have  arisen  with  respect  to  rivers  which  are  not  so  enclosed,  but  which 
flow  through  more  than  one  State. (a)  The  Roman  law  declared  all 
navigable  rivers  to  be  so  far  public  property  that  a  free  passage  over 
them  was  open  to  everybody,  and  the  use  of  their  banks  (jus  littoris\  for 
anchoring  vessels,  lading  and  unlading  cargo,  and  acts  of  the  like  kind, 
to  be  incapable  of  restriction  by  any  right  of  private  domain. (i) 

CLVI.  The  navigable  rivers,  however,  were  classed,  according  to  that 
law,  among  the  "  res  publicce,"  and  not,  as  might  appear  from  a  super- 
ficial view,  among  the  "  res  communes,"  as  the  sea  was.  Rivers  were 
the  public  property  of  the  State,  not  common  to  the  whole  world  like  the 
ocean,  (c) 

CLVII.  It  has  been  contended,  that  the  principle  of  this  law  has  been 
engrafted  upon  International  Law,  and  that  it  is  a  maxim  of  that  law 
that  the  ocean  is  free  to  all  mankind,  and  rivers  to  all  riparian  inhabi- 
tants. So  that  the  nation  which  possessed  both  banks  of  a  river  where 
it  disembogued  itself  into  the  sea,  was  not  at  liberty  to  refuse  the  nation 
r*ifi»n  or  na^ons  which  possessed  the  banks  of  the  river  *higher  up, 
J  from  the  use  of  the  water,  for  the  passage  of  vessels  to  the  sea, 
and  from  the  incidental  use  of  the  banks  for  the  purposes  mentioned 
above. (d\  The  opinion  of  Grotius(e)  seems  to  be  in  favour  of  this  posi- 
tion; for  he  held  that,  though  the  property  and  domain  over  the  stream 
belonged  to  the  riparian  States,  "at  idem  flumen  quS,  aqua  profluens 
vocatur,  commune  mansit;"(/)  and  this  upon  two  grounds:  1.  Because 
this  was  one  of  the  rights  excepted  and  reserved,  at  the  period  when  the 
right  of  property  was  introduced  as  a  limitation  upon  the  original  com- 
munity of  possession,  in  which  fiction  this  great  man  believed ;  but  as 
the  basis  of  this  opinion  clearly  was  and  is  now  universally  acknowledged 
to  be  a  fiction,  this  reason,  built  upon  the  supposition  of  its  being  a 
truth,  can  be  of  no  avail. (#)  2.  Because  the  use  of  rivers  belonged  to 
the  class  of  things  "  utilitatis  innoxicE}"(h}  the  value  of  the  stream  being 
in  no  way  whatever  diminished  to  the  proprietors  by  this  innocent  use  of 
them  by  others,  inasmuch  as  the  use  of  them  is  inexhaustible.^')  G-rotius, 

(a)  Grotius,  1.  ii.  c.  ii.  ss.  12 — 14,  p.  191;  c.  iii.  ss.  7 — 12,  p.  207. 
(b\  Inst.  1.  ii.  tit.  i.  ss.  1 — 5 ;  Dig.  1.  i.  tit.  viii.  s.  5. 

(c)  "Qujedam  enim  natural!  jure  communia  sunt  omnium,  quaedam  publica  .... 
Et  quidem  natural!  jure  communia  sunt  omnia  haec:  Aer,  Aqua  profluens,  et  Mare, 
et  per  hoc  littora  maris  ....  Flumina  autem  omnia,  et  Portas,  publica  sunt. — 
Inst.  1.  ii.  tit.  i.  ss.  1,  2. 

(d)  Wheaton's  History  of  the  Law  of  Nations,  p.  502. 

(e)  Lib.  ii.  c.  ii.  s.  12,  et  seq.  p.  191. 

(/)  Vattel,  1.  i.  c.  x.  ss.  103,  104;  1.  i.  c.  xxiii.  s.  292. 

(g)  So  Vattel,  t.  i.  1.  ii.  c.  ix.  s.  123:  " — un  reste  de  la  communion  primitive." 

(h)  Grotius,  1.  ii.  c.  ii.  s.  11. 

(i)  Vattbl,  t.  i.  1.  ii.  c.  ix.  s.  126:  "Des  choses  d'un  usage  inepuisable." 


RIVERS.  153 

as  it  will  be  necessary  to  remark  hereafter,  appears  to  have  considered 
the  right  of  mere  passage  (Jus  transitus  innoxii}  by  one  nation  over  the 
domain  of  another — whether  that  domain  was  an  arm  of  the  sea,  or  lake, 
or  river,  or  even  the  land — to  be  one  of  strict  law,  and  not  of  comity ; 
but  his  opinion  is  not  founded  upon  any  sound  or  satisfactory  reason ; 
and  is  at  variance  with  that  of  almost  all  other  jurists.^')  For,  the  rea- 
son of  the  thing  and  the  opinion  of  other  jurists,  speaking  generally, 
seem  to  agree  in  holding  that  the  right  can  only  *be  what  is  called  i-^™-. 
(however  improperly)  by  Yattel  and  other  writers  imperfect,  and  L 
that  the  State,  through  whose  domain  the  passage  is  to  be  made,  must 
be  the  sole  judge  as  to  its  being  innocent  or  injurious  in  its  character. (A;) 

CLVIII.  It  may  be  conceded,  however,  that  the  right  to  the  free 
navigation  of  a  river  being  once  granted,  the  innocent  use  of  the  diffe- 
rent waters  which  unite  that  river  with  the  sea  follows  as  a  matter  of 
course,  and  by  necessary  implication.  This  proposition  was  stoutly 
maintained  by  the  States  who  were  interested  in  the  free  navigation  of 
the  Rhine,  and  who  insisted  that  no  other  construction  could  be  put  upon 
the  expressions  in  the  treaties  of  Paris  and  Vienna,  declaring  that  river 
to  be  free.  "  Au  point  ou  il  devient  navigable  jusqu'a  la  mer,"(7)  which 
expressions  included,  not  only  the  course  of  the  Rhine  Proper,  which 
lost  itself  in  the  sands,  but  the  other  channels  through  which  this  river 
disembogued  itself  into  the  sea.(m) 

CLIX.  And  it  may  also  be  admitted,  that  when  this  right  of  free 
navigation  has  been  conceded,  the  maxim  of  Roman  jurisprudence  ap- 
plies, and  that  the  right  of  the  shores  is  incident  to  the  use  of  the  water. 
Mr.  Wheaton  remarks,  in  his  valuable  history  of  the  Law  of  Nations, 
that  the  laws  of  every  country  probably  intended  the  same  provision ; 
and  he  adds  a  remarkable  instance  of  the  practical  application  of  the 
principle  in  the  following  precedent  of  International  Law  : — "  This"  (he 
says)  "  must  have  been  so  understood  between  France  and  Great  Britain 
at  the  Treaty  of  Paris,  when  a  right  was  ceded  to  British  subjects  to 
navigate  the  whole  river  (the  Mississippi),  and  expressly  that  part  between 
the  island  of  New  Orleans  and  the  western  bank,  without  stipulating  a 
word  about  the  use  of  the  shores,  though  both  *of  them  belonged  ^-^  _,,-, 
then  to  France,  and  were  to  belong  immediately  to  Spain.  Had  «- 
not  the  use  of  the  shores  been  considered  as  incident  to  that  of  the  water, 
it  would  have  been  expressly  stipulated,  since  its  necessity  was  too  obvious 
to  have  escaped  either  party.  Accordingly,  all  British  subjects  used  the 
shores  habitually  for  the  purposes  necessary  to  the  navigation  of  the 
river ;  and  when  a  Spanish  governor  undertook  at  one  time  to  forbid  this, 
and  even  cut  loose  the  vessels  fastened  to  the  shores,  a  British  vessel 

(j)  Monsieur  Eugene  Ortolan,  however,  a  modern  French  author,  who  writes 
with  care,  good  sense,  and  perspicuity,  agrees  with  Grotius.  See  Des  Moyens 
d'acque'rir  le  Domaine  International  ou  Propriete"  d'Etat  entre  les  Naions,  etc.,  p. 
30  (Paris,  1851.) 

(k)  Puffendorf,  1.  iii.  c.  iii.  s.  8.  Wheaton's  Elem.  of  International  Law,  vol.  i. 
pp.  229,  230.  History  of  the  Law  of  Nations,  pp.  508—510.  Puffendorf,  1.  iii.  c. 
iii.  ss.  3—6.  Wolff's  Inst.  ss.  310—312.  Vattel,  1.  i.  s.  292;  1.  ii.  ss.  123—139. 

(1)  De  Martens  et  de  Cussy,  Rec.  de  Tr.,  t.  iii.  p.  179. 

(m)  Annual  Register  for  1826,  pp.  259 — 263. 

JULY,  1854.— 11 


154  PHILLIMOKE    ON     INTERNATIONAL    LAW. 

went  immediately,  moored  itself  opposite  the  town  of  New  Orleans,  and 
set  out  guards  with  orders  to  fire  on  such  as  might  disturb  her  moorings. 
The  governor  acquiesced,  the  right  was  constantly  exercised  afterwards, 
and  no  interruption  was  offered. "(n) 

CLX.  These  accessaries,  however,  can  of  course  only  be  demanded 
when  the  principal  right  has  been  granted;  and  we  must  return  to  the 
position,  that  where  the  free  navigation  of  a  river  has  not  been  conceded 
by  the  State  possessing  both  banks,  there  is  not  sufficient  authority  for 
maintaining  that  such  concession  can  be,  irrespectively  of  treaty,  law- 
fully compelled.  It  is  true,  indeed,  that  the  United  States  of  America, 
in  their  controversy  with  Spain  with  reference  to  the  navigation  of  the 
Mississippi,  before  the  Treaty  of  Lorenzo  el  Real  in  1795,  insisted  upon 
a  strict  International  right,  founded  as  it  was  alleged,  upon  the  natural 
sentiments  of  man,  to  the  free  use  of  rivers  from  the  source  to  the 
mouth  to  all  riparian  inhabitants.  But  the  practice  of  nations  was  not 
at  that  time  in  favour  of  this  position,  and  a  treaty  was  finally  resorted 
to  in  this,  as  it  has  been  since  in  other  cases,  as  the  only  certain  means 
of  placing  this  claim  upon  the  footing  of  right,  and  of  securely  regulat- 
ing its  exercise. 

CLXI.  The  general  law  upon  this  head  is  summed  up  with  character- 
istic perspicuity  by  Lord  Stowell  in  the  case  of  the  "  Twee  Gibroe- 
r*1711  ders."(o)  ^n^s  was  a  case  °^  considerable  *importance,  as  it 
!J  respected  the  claim  of  a  sovereign  State  to  the  right  of  territory 
over  the  spot  where  the  capture  in  question  was  alleged  to  have  taken 
place.  The  case  arose  on  the  capture  of  vessels  in  the  Groningen  Watt, 
on  the  suggestion  that  they  were  bound  from  Hamburg  to  Amsterdam, 
then  under  blockade,  and  a  claim  was  given  under  the  authority  of  the 
Prussian  minister,  averring  the  place  in  question  to  be  within  the  terri- 
tories of  the  King  of  Prussia.  Lord  Stowell  said,  "It  is  scarcely  neces- 
sary to  observe,  that  a  claim  of  territory  is  of  a  most  sacred  nature. 
Strictly  speaking,  the  nature  of  the  claim  brought  forward  on  this  occa- 
sion is  against  the  general  inclination  of  the  law,  for  it  is  a  claim  of  pri- 
vate and  exclusive  property,  on  a  subject  where  a  general,  or  at  least  a 
common  use  is  to  be  presumed.  It  is  a  claim  which  can  only  arise  on  por- 
tions of  the  sea,  or  on  rivers  flowing  through  different  States  :  the  law 
of  rivers  flowing  entirely  through  the  provinces  of  one  State  is  perfectly 
clear.  In  the  sea,  out  of  the  reach  of  cannon  shot,  universal  use  is  pre- 
sumed; in  rivers  flowing  through  conterminous  States,  a  common  use 
of  the  different  States  is  presumed.  Yet,  in  both  of  these,  there  may, 
by  legal  possiblity,  exist  a  peculiar  property  excluding  the  universal  or 
the  common  use.  Portions  of  the  sea  are  prescribed  for,  so  are  rivers 
flowing  through  contiguous  States ;  the  banks  on  one  side  may  have 
been  first  settled,  by  which  the  possession  and  property  may  have  been 
acquired,  or  cessions  may  have  taken  place  upon  conquests,  or  other 
events.  But  the  general  presumption  certainly  bears  strongly  against 
such  exclusive  rights,  and  the  title  is  a  matter  to  be  established,  on  the 
part  of  those  claiming  under  it,  in  the  same  manner  as  all  other  legal 

(n)  Hist,  of  the  Law  of  Nations,  510,  511.         (o)  3  Rob.  Ad.  Rep.  338—340. 


[*172] 


RIVERS.  155 

demands  are  to  be  substantiated,  by  clear  and  competent  evidence.  The 
usual  manner  of  establishing  such  a  claim  is,  either  by  the  express  recorded 
acknowledgment  of  the  conterminous  States,  or  by  an  ancient  exercise 
of  executive  jurisdiction,  founded  presumptively  on  an  admission  of  prior 
settlement,  or  of  subsequent  cession.  One  hardly  *sees  a  third 
species  of  evidence,  unless  it  be,  what  this  case  professes  to 
exhibit,  the  decision  of  some  common  superior  in  the  case  of  a  contested 
river.  The  sea  admits  of  no  common  sovereign ;  but  it  may  happen  that 
conterminous  States,  through  which  a  river  flows,  may  acknowledge  a 
common  paramount  sovereign,  who,  in  virtue  of  his  political  relation  to 
them,  may  be  qualified  to  appropriate  exclusively  and  authoritatively  the 
rights  of  territory  over  such  a  river,  to  one  or  other  of  them." 

CLXII.  This  free  navigation,  and  this  innocent  use  of  rivers,  have 
formed  an  important  part  of  many  treaties ;  and  the  subject  has  been 
most  carefully  considered  in  some  of  the  principal  conventions  of  modern 
times. 

CLXIII.  "When  the  Seven  United  Provinces  had  obtained,  after  a 
struggle  of  eighty  years'  duration,  the  recognition  of  their  independence 
from  the  crown  of  Spain,  they  were  not  contented  with  having  achieved 
their  own  liberty,  and  with  having  possessed  themselves  of  some  of  the  richest 
colonies  of  their  former  sovereign  in  the  new  world ;  they  strove,  being 
far-sighted  according  to  the  notions  of  trade  then  prevalent,  to  secure  to  them- 
selves, both  at  home  and  abroad,  the  closest  commercial  monopoly  ;(p) 
and  by  the  peace  of  Munster  (Jan.  30,  1648)  they  actually  compelled 
Philip  the  Fourth  to  deprive  the  Ten  Provinces,  which  had  retained  their 
allegiance,  of  the  commercial  advantages  naturally  incident  to  their  geo- 
graphical situation.  The  fourteenth  article  of  that  Peace(2)  contained  a  sti- 
pulation that  the  Scheldt  in  all  its  branches,  and  in  its  mouths  of  Sas, 
Zwyn,(?-)  and  the  other  openings  *into  the  sea,  should  be  for-  r#i'-q-i 
ever  closed  to  the  Belgian  provinces.  This  stipulation,  to  which  L 
the  ruin  of  the  once  magnificent  commerce  of  Antwerp  has  been  ascribed, 
was  rigidly  enforced  till  1783,(s)  when  Joseph  the  Second  eadeavoured 
to  remove  the  unnatural  obstacles  to  the  natural  prosperity  of  his  fine  Bel- 
gic  provinces,  by  forcing  most  illegally  it  must  be  confessed,  the  opening 
of  the  Scheldt.  But  the  Dutch  made  on  the  whole  a  successful  resist- 
ance to  this  attempt,  retaining,  by  the  Treaty  of  Fontainebleau  (which 
they  concluded  under  the  mediation  of  France,  with  Joseph  in  1785,)  the 

(p}  Kock,  Histoire  des  Traites  de  Paix,  torn.  i.  pp.  84,  483  (ed  Bruxelles,  1837). 

(q)  The  stipulation  was  said  to  be  only  a  confirmation  of  ancient  right  of  Staple 
(cTetapas)  by  which  foreign  vessels  entering  the  Scheldt  were  compelled  to  break 
bulk,  and  put  their  cargo  on  board  Dutch  vessels  ;  but  by  this  stipulation  foreign 
vessels  were  absolutely  prohibited  from  entering  the  Scheldt. 

(r)  The  Dutch,  it  should  be  observed,  always  maintained  that  the  whole  course 
of  the  two  branches  of  the  Scheldt,  which  passed  within  the  dominions  of  Holland, 
was  entirely  artificial:  that  it  owed  its  existence  to  the  skill  and  labour  of  Dutch- 
men ;  that  its  banks  had  been  erected  and  maintained  by  them  at  a  great  labour 
and  expense. 

(«)  See  Martens'  Causes  Celebres,  t.  ii.  p.  203 — Cause  Huitieme  :  "  Diffe'rends  surve- 
nus  en  1783  et  1784,  entre  1'Autriche  et  la  Re'publique  des  Provinces,  unies  des 
Pays-Bas,  au  sujet  des  limites  de  la  Flandre,  de  la  cession  de  Mastricht,  de  1'ouver- 
ture  de  1'Escaut  et  du  commerce  aux  Indes-Orientales." 


156  PHILLIMORE     ON     INTERNATIONAL     LAW. 

Scheldt  from  Saftingen  to  the  sea,  and  all  the  mouths  of  the  Scheldt  in 
the  same  closed  condition,  in  which  they  had  been  placed  by  the  Treaty 
of  Munster.  The  forcible  opening  of  this  navigation  by  the  French 
when  they  overrun  Belgium  in  1792,  and  the  utter  disregard  which  they 
avowed  for  all  treaties  upon  the  matter,  was  one  of  the  circumstances 
which  brought  England  and  Holland  into  the  war  against  France. 

CLXIV.  The  Treaty  of  Vienna  in  1815  introduced  a  more  liberal 
principle  upon  this  subject  into  the  public  law  of  Europe.  The  final  act 
of  the  Congress  of  Vienna  provided,  by  what  is  called  the  Annexe  XVI., 
that  the  navigation  of  all  rivers  separating  or  traversing  different  States 
should  be  entirely  free,  from  the  point  where  each  river  became  navigable, 
r*!7n  *°  *^e  P°in*  °^  i*s  disemboguement  in  the  sea.(Q  The  *general 
-I  principles  of  this  act  of  regulation  (reglement)  were  founded 

(t)  Hertslet's  Tr.,  vol.  i.  p.  2. — "Art.  CVIII.  Les  puissances  dont  les  e*tats  sont 
se'pare's  ou  traverses  par  une  meme  riviere  navigable,  s'engagentaregler  d'un  com- 
mun  accord,  tout  ce  qui  a  rapport  u  la  navigation  de  cette  riviere.  Elles  nomme- 
ront,  a  cet  effet,  des  commissaires  qui  se  re"uniront  au  plus  tard,  six  moins  apres 
la  fin  du  Congres,  et  qui  prendrontpour  bases  de  leurs  travaux  lesprincipes  e"tablis 
dans  les  articles  suivans. 

"Art.  CIX.  La  navigation  dans  tout  le  cours  des  rivieres  indique"es  dans  1'article 
pre'ce'dent,  du  point  ou  chacune  d'elles  devient  navigable  jusqu'a  son  embouchure, 
sera  entierement  libre,  et  ne  pourra,  sous  le  rapport  du  commerce,  etre  interdite  a 
personne ;  bien  entendu  que  Ton  se  conformera  aux  reglemens  relatifs  &  la  police 
de  cette  navigation ;  lesquels  seront  con9us  d'une  maniere  uniforme  pour  tous,  et 
aussi  favorable  que  possible  au  commerce  de  toutes  les  nations. 

"Art.  CX.  Le  systeme  qui  sera  e"tabli,  tant  pour  la  perception  des  droits  que  pour 
le  maintien  de  la  police,  sera,  autant  que  faire  se  pourra,  le  me'me  pour  tout  le 
cours  de  la  riviere,  et  s'e"tendra  aussi,  a  moins  que  les  circonstances  particulieres 
ne  s'y  opposent,  sur  ceux  de  ses  embranchemens  et  confluens  qui,  dans  leur  cours 
navigable,  se"parent  ou  traversent  differents  e"tats. 

"Art.  CXI.  Les  droits  sur  la  navigation  seront  fixe"s  d'une  maniere  uniforme, 
invariable,  et  assez  inde"pendante  de  la  qualite  diffe"rente  des  marchandises  pour 
ne  pas  rendre  ne"cessaire  un  examen  de"taille  de  la  cargaison,  autrement,  que  pour 
cause  de  fraude  et  de  contravention.  La  quotite  de  ces  droits,  qui,  en  aucun  cas, 
ne  pourront  excdder  ceux  existans  actuellement,  sera  determines  d'apres  les  circon- 
stances locales,  qui  ne  permettent  gueres  d'etablir  une  regie  generale  i  cet  egard. 
On  partira  neanmoins,  en  drossant  le  tarif,  au  point  de  vue  d'encourager  le  com- 
merce en  facilitant  la  navigation,  et  1'octroi  etabli  sur  le  Rhin  pourra  servir  d'une 
norme  approximative. 

"  Le  tarif  une  fois  regie,  il  ne  pourra  plus  etre  augmente  que  par  un  arrange- 
ment commun  des  etats  riverains,  ni  la  navigation  grevee  d'autres  droits  quelcon- 
ques,  outre  ceux  fixes  dans  le  reglement. 

"  Art.  CXII.  Les  bureaux  de  perception,  dont  on  requira  autant  que  possible  le 
nombre,  seront  fixes  par  le  reglement  et  il  ne  pourra  s'y  faire  ensuite  aucun  change- 
ment,  que  d'un  commun  accord,  a  moins  qu'un  des  etats  riverains  ne  voulut  dimi- 
nuer  le  nombre  de  ceux  qui  lui  appartiennent  exclusivement. 

"Art.  CXIII.  Chaque  e"tat  riverain  se  chargera  de  1'entretien  des  chemins  de 
hallage  qui  passent  par  son  territoire,  des  travaux  ne"cessaires  pour  la  meme  e"ten- 
due  dans  le  lit  de  la  riviere  pour  ue  faire  e"prouver  aucun  obstacle  a  la  navigation. 

"Le  reglement  futur  fixera  la  maniere  dont  les  etats  riverains  devront  concourir 
a  ces  derniers  travaux,  dans  le  cas  ou  les  deux  oives  appartiennent  h  difterens 
gouvernment. 

"Art.  CXIV.  On  n'etablira  nulle  part  des  droits  d'etape,  d'echelle,  ou  de  relache 
forcee.  Quant  a  ceux  qui  existent  deja,  ils  ne  seront  conserves  qu'en  tant  que  les 
etats  riverains,  sans  avoir  e"gard  h  rinte"re"t  local  de  1'endroitou  du  pays  ou  ils  sont 
6tablis,  les  trouveroient  necessaires  ou  utiles  &  la  navigation  et  au  commerce  en 
general. 

"  Art.  CXV.  Les  douanes  des  etats  riverains  n'auront  rien  de  commnn  avec  les 
droits  de  navigation.  On  empechera,  par  des  dispositions  reglementaires,  que 


B I  V  E  a  8. 

upon  a  memoir  of  the  celebrated  Wilhelm  Yon  *Humboldt,(M) 
then  the  Prussian  plenipotentiary ;  they  were  afterwards  applied, 
by  a  series  of  articles,  to  the  details  of  the  tolls,(o;)  octroi,  police,  and 
other  matters  incident  to  the  navigation  of  rivers,  and  in  particular  to 
the  Rhine,  the  Neckar,  the  Main,  the  Moselle,  the  Meuse,  the  Scheldt 
— the  stipulations  relating  to  the  Meuse  and  the  Scheldt  were  subse- 
quently incorporated  into  the  treaty  of  1839,  between  the  then  indepen- 
dent kingdoms  of  Holland  and  Belgium. 

CLXV.  Arrangements  made  in  a  similar  spirit  with  respect  to  the 
free  navigation  of  the  Vistula,  entered  into  in  May,  1815,  between 
Austria  and  Russia, (#)  and  between  *Russia  and  Prussia,  to 
which  Austria  subsequently  acceded,  and  with  respect  to  the 
rivers  and  canals  of  ancient  Poland,  were  confirmed  by  the  fourteenth 
article  of  the  final  diet  of  this  Congress.  Similar  regulations  were 
established  with  respect  to  the  navigation  of  the  Elbe,  by  a  convention 
signed  at  Dresden,  on  the  23rd  of  June,  1821,  by  the  States  bordering 
on  that  river  (les  etats  riverains;")  and  by  an  additional  act,  signed  by 
the  same  parties  at  Dresden,  on  the  13th  of  April,  1844,  a  similar  act 
was  entered  into  by  the  States  bordering  on  the  Weser  on  the  10th  of 
September,  1823. (2)  By  the  ninety-sixth  article  of  the  same  Congress, 
the  same  general  principles  with  respect  to  the  free  navigation  of  rivers 
were  extended  to  the  Po. 

CLXVI.  By  a  Treaty(a)  between  Spain  and  Portugal,  signed  at 
Lisbon  on  the  13th  of  August,  1835,  the  perfect  freedom  of  navigation 

1'exercice  des  fonctions  des  douaniers  ne  mette  pas  d'entraves  a  la  navigation  ;  mais 
ou  surveillera,  par  une  police  exacte  sur  la  rive,  toute  tentative  des  habitans  de 
faire  la  contrebande  a  1'aide  des  bateliers. 

"  Art.  CXVI.  Tout  ce  qui  est  indique"  dans  les  articles  pre"cedens,  sera  de"termin6 
par  un  reglement  commun  qui  renfermera  e"galement  tout  ce  qui  auroit  besoin  d'etre 
fixe  ulte'rieurement.  Le  reglement,  une  fois  arrete",  ne  pourra  etre  change",  que  du 
consentement  de  tons  les  e"tats  riverains,  et  ils  aurout  soin  de  pourvoir  a  son 
execution  d'un  maniere  convenable,  et  adapte"e  aux  circonstances  et  aux  localite's. 

"  Art.  CXVII.  Les  re"glements  particuliers  relatifs  a  la  navigation  du  Rhin,  du 
Neckar,  du  Mein,  de  la  Moselle,  de  la  Meuse  et  de  1'Escaut,  tels  qu'ils  se  trouvent 
joints  au  present  acte,  auront  la  meme  force  et  valeur  que  s'ils  y  avaient  e"te" 
textuellement  inse"re"s." 

(u]  Wheaton's  History,  p.  498. 

(x)  Grotius,  1.  ii.  c.  ii.  xiv.  2,  observes  generally  upon  the  question  of  tolls : 
"Sed  quaeritur,  an  ita  transeuntibus  mercibus,  terra,  aut  amne,  aut  parte  maris, 
quae  terrae  accessio  dici  possit,  vectigalia  imponi  possint  ab  eo,  qui  in  terra  impe- 
rium  habet.  Certe  quaecunque  onera  ad  illas  merces  nullum  habent  respectum, 
ea  mercibus  istis  imponi  nulla  aequitas  patitur.  Sic  nee  capitatio,  civibus  imposita 
ad  sustentanda  reipublicae  onera,  ab  exteris  transeuntibus  exigi  potest.  Sed  si 
aut  ad  praestandam  securitatem  mercibus,  aut  inter  caetera  etiam  ob  hoc  onera 
sustinentur,  ad  ea  compensanda  vectigal  aliquod  imponi  mercibus  potest,  dum 
modus  causas  non  excedatur."  Upon  this  passage  Barbeyrac  remarks,  "  Cette 
raison  et  autres  sembables  ne  font  que  rendre  plus  juste  la  leve"e  des  impots.  Mais 
independamment  de  tout  cela  on  peut  exiger,  quelque  chose  pour  la  simple  per- 
mission de  passer,  qu'on  n'etoit  pas  oblige"  d'accorder  a  la  riguear.  II  est  libre  a 
tout  proprietaire,  par  une  suite  du  droit  meme  de  proprietaire,  de  n'accorder  a 
autre  que,  moiennant  un  certain  prix,  1'usage  de  son  bien."  See  also  Vattel,  1.  i. 
c.  x.  pp.  103,  104,  128  ;  1.  ii.  c.  x.  p.  362. 

(y)  Treaty  between  Austria  and  Russia  as  to  the  Dniester,  March  19,  1810. 

(z)  Martens  Xouv.  Recueil,  torn.  ix.  p.  361. 

(a)  Martens  et  De  Cussy,  torn.  iv.  p.  123. 


158  PHILLIMORE    ON    INTERNATIONAL    LAW. 

of  the  river  Douro  was  secured  to  the  subjects  of  both  the  contracting 
powers. 

CXLVII.  The  Treaty  of  Bucharest  in  1812  put  an  end  to  the  hosti- 
lities which  had  been  carried  on  between  Kussia  and  the  Ottoman  Empire 
since  1809.  By  the  fourth  article  of  that  Treaty  it  was  covenanted, 
that  the  boundary  of  Russia  on  the  side  of  Turkey  in  Europe  should  be 
the  Pruth,  from  the  point  where  it  joins  the  Danube,  and  the  left  bank 
of  the  Danube  to  its  mouth  into  Kilia  in  the  Black  Sea ;  that  the  navi- 
gation of  both  rivers,  according  to  these  limits,  should  be  equally  free 
— the  latter  only  having  been  so  before — to  the  subjects  of  both 
empires;  that  no  fortifications  should  be  erected  on  the  island  in  it; 
and  that  the  right  of  fishing  and  cutting  wood  should  also  be  common  to 
both  countries. (i)  But  on  the  25th  of  July,  1840,  the  navigation  of 
the  noble  and  mighty  Danube  was  subjected  to  pretty  much  the  same 
regulations  as  the  other  great  rivers  which  have  been  mentioned. (c) 
pici— 7-1  *The  extension  of  the  principle  of  free  navigation  to  this  great 
J  artery  of  Europe  is  a  fact  of  no  light  importance  to  the  present 
and  future  welfare  of  mankind.  But  by  the  Treaty  of  Adrinople((7)  the 
Sulina  channel  of  the  Danube  is  practically  placed  under  the  power  of 
Russia,  and  much  of  the  value  of  the  navigation  depends  upon  the 
state  of  this  channel,  about  which  great  complaints  have  been  recently 
made.(e) 

CLXVIII.  The  expressions  in  the  Treaties  of  Paris  and  Vienna, 
stipulating  for  the  free  navigation  of  the  Rhine  "  jusqu'a  la  mer,"  gave 
rise  to  a  serious  controversy  between  the  Dutch  government  and  all  the 
other  powers  interested  in  the  navigation  of  that  river,  except  Baden 
and  France ;  they  supported  the  interpretation  put  upon  these  words  by 
the  Dutch.  "To  the  sea,"  they  contended,  in  the  first  place,  did  not 
mean  "into  the  sea;"  and,  secondly,  if  the  upper  states  were  to  insist 
so  strictly  upon  words,  then  they  must  be  contented  with  the  course  of 
the  proper  Rhine  itself.  The  mass  of  water  which  forms  the  Rhine, 
dividing  itself  a  little  way  above  Nimeguen,  is  carried  to  the  sea  through 
three  principal  channels,  the  Waal,  the  Leek,  and  the  Yssel ;  the  first 
descending  by  Gorcum,  where  it  changes  its  name  for  that  of  the  Mouse; 
the  second,  farther  to  the  North,  approaching  the  sea  at  Rotterdam ;  and 
the  third,  taking  a  northerly  course  by  Zutphen  and  Deventer,  to  disgorge 
itself  into  the  Zuyderzee.  None  of  these  cannels,  however,  is  called  or 
reckoned  the  Rhine ;  that  name  is  preserved  to  a  small  stream  which 
leaves  the  Leek  at  Wyck,  takes  its  course  by  Utrecht  and  Ley  den, 
gradually  losing  its  waters,  and  dwindling  away  so  as  to  be  unable  to 
r*l78~l  reacn  *ne  sea>  *disappears  among  the  downs  in  the  neighbourhood 
•"  of  Kulwyck.  The  Rhine  itself,  strictly  speaking,  being  thus 

(b)  Wheaton's  Hist.  p.  504. 

(c)  "Convention  conclue  le  25  (13)  Juillet,  1840,  entre  1'Antriche  et  la  Russie, 
concernant  la  navigation  du  Danube." — Martens,  Rec.  de  Traite"s,  &c.,  vol.  xxx.  p. 
209.  (d)  Art.  2,  1829. 

(e)  Correspondence  with  the  Russian  Government  respecting  obstructions  to  the 
navigation  of  the  Sulina  Channel  of  the  Danube,  in  papers  laid  before  Parliament, 
1853. 


RIVERS. 

useless  for  the  purposes  of  sea-navigation,  it  had  been  agreed  between 
Holland  and  her  neighbours  to  consider  the  Leek  as  the  continuation  of 
the  Rhine ;  and  the  government  of  the  Netherlands  afterwards  consented 
that  the  Waal,  as  being  deeper  and  better  adapted  to  navigation,  should 
be  substituted  for  the  Leek.  Now  the  Waal,  said  the  government  of 
Holland,  terminates  at  Gorcum,  to  which  the  tide  ascends;  there  con- 
sequently ends  the  Rhine ;  all  that  remains  of  that  branch  from  Gorcum 
to  Gravelingen,  Helvoetsluys,  and  the  mouth  of  the  Meuse,  is  an  arm 
of  the  sea,  inclosed  within  our  own  territories,  and  therefore  to  be  sub- 
jected to  any  imposts  and  regulations  which  we  may  think  fit  to  establish. 
This  interpretation,  though  supported,  as  has  been  remarked,  by  France 
and  Baden,  was  strenuously  opposed  by  all  the  other  powers  of  Germany, 
who  denounced  it  as  an  attempt  to  evade  by  chicane  the  plain  meaning 
of  the  Treaty  of  Paris.  Prussia  addressed  a  memorial  to  the  great 
powers  who  had  been  parties  to  the  Treaty  of  Paris  and  the  Congress  of 
Vienna,  calling  upon  them  to  state  what  had  been  the  real  meaning  of 
that  Treaty  in  regard  to  the  navigation  of  the  Rhine.  The  allied  powers 
put  upon  the  Treaty  the  same  interpretation  as  the  German  States ;  but  the 
government  of  the  Netherlands  having  returned  an  unfavourable  answer 
to  their  joint  remonstrance,  the  Austrian  envoy  at  Brussels  presented  a 
note  to  that  Court,  in  February,  1826,  in  which  he  argued,  that,  «  by 
the  Treaty  of  Paris,  the  allied  powers,  in  conjunction  with  France,  agreed 
that  the  sovereignty  of  the  House  of  Orange  should  receive  an  accession 
of  territory,  and  that  the  navigation  of  the  Rhine,  from  the  point  where 
it  is  navigable  to  the  sea  (jusqu'a  la  mer,)  and  vice  versa,  should  be  free. 
This  last  point  was  further  confirmed  in  the  separate  article,  which  pro- 
vides '  that  the  freedom  of  navigation  in  the  Scheldt  shall  be  established 
on  the  same  principles  as  those  on  which  the  navigation  of  the  Rhine  is 
regulated  by  Article  5  of  the  present  Treaty.  *The  allied 
powers  further  reserved  to  themselves  to  determine,  at  the  next 
Congress,  the  countries  which  should  be  united  with  Holland,  and 
declared  '  that  then  the  principles  should  be  discussed,  upon  which  the 
tolls  to  be  levied  by  the  States  on  the  banks  might  be  regulated  in  the 
most  uniform  manner  and  most  advantageously  to  the  commerce  of  all 
nations.'  It  appeared,  from  the  simultaneous  issuing  of  these  two 
resolutions,  that,  among  other  conditions  which  the  allies  annexed  to  the 
incorporation  of  Belgium,  this  increase  of  territory  was  combined  on  their 
side,  even  before  the  establishment  of  the  kingdom  of  the  Netherlands, 
with  the  above  obligation  to  restore  the  freedom  of  the  navigation. 
There  could  certainly  be  no  more  express  and  positive  obligation  than 
that  which  is  united  with  the  foundation  of  a  State,  and  which,  in  the 
present  case,  had  been  fully  sanctioned  by  the  accession  of  the  king  of 
the  Netherlands  to  the  Treaty  of  Paris,  and  the  act  of  Congress  at 
Vienna.  It  was  inconceivable  how  the  government  of  the  Netherlands 
could  flatter  itself  with  the  hope  of  making  a  right  obscure  and  doubtful, 
by  prolix  observations  on  the  main  resolution,  and  to  do  away  with  the 
principle  of  the  free  navigation  of  the  Rhine,  which  was  proclaimed  in 
the  face  of  the  world  in  the  first  document  of  the  political  restoration  of 


160  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Europe,  and  on  the  same  day  when  Holland  was  given  up  to  the  House 
of  Orange." 

The  cabinet  of  Brussels  replied  by  a  repetition  of  the  geographical 
argument,  that  the  Khine,  properly  so  called,  did  not  reach  the  sea; 
and  by  an  assertion,  that  the  Republic  of  Holland  had  never  ceased  to 
exist  dejure,  and  had  preserved  its  existence  under  a  monarch  de  facto, 
before  the  act  of  the  Congress  of  Vienna,  and  before  the  treaties  which 
incorporated  with  it  the  Catholic  Netherlands.  The  outlets  of  the  Rhine 
were  certainly  streams  belonging  to  Holland,  and  to  Holland  only  ;  but 
the  question  was,  whether  the  opening  of  these  streams  was  not  a  part 
of  the  condition  whereby  Holland  had  gained  the  accession  of  the  Belgic 
provinces, — whether  they  were  not  conferred  and  accepted  on  the  under- 
pin 8ft~l  standing  *that  the  exclusive  territorial  right  to  the  mouths  of 
J  the  Rhine  should  be  modified  and  limited  for  the  future.  The 
reply  of  the  Dutch  Cabinet  does  not  seem  to  meet  this  objection;  and  it 
must  be  confessed  that,  to  contend  that  the  Rhine  Proper  is  lost  in  a 
little  brook,  while  two-thirds  of  its  mighty  volume  of  water  are  flowing 
on  through  the  Waal  and  receiving  the  tributary  Meuse,  is  a  proposition 
which,  however  geographically  accurate,  cannot  be  very  agreeable  to  the 
plain  common  sense  of  mankind.  All  that  could  be  gained,  however,  at 
this  time  was  a  concession  that  the  Leek  should  be  considered  as  the 
Rhine,  and  that  German  vessels  should  be  allowed  to  navigate  it  unmo- 
lested under  no  higher  duties  than  might  be  imposed  on  other  parts  of 
the  river,  and  that  the  prohibitions  against  the  transit  of  goods  should 
be  abolished.  Still  however,  the  main  question — through  what  channel 
the  Rhine  "jusqu'a  la  mer"  was  to  be  navigated — remained  in  uncer- 
tainty ;  for  the  Leek  ends  at  its  junction  with  the  Meuse  before  it  reaches 
Rotterdam,  and  the  Meuse  was  a  river  purely  Belgic  and  Dutch. (f\ 

But  by  the  Treaty^)  concluded  at  Mayence,  March  31st,  1831,  it  was 
finally  settled  by  all  the  riparian  States  of  the  Rhine,  that  this  river 
should  be  free  from  the  point  where  it  is  first  navigable  into  the  sea 
itself  (bis  in  die  See,}  and  that  the  two  outlets  to  the  sea  should  be  the 
Leek  and  the  Waal — the  passage  through  the  Leek  being  by  Rotterdam 
and  Briel,  and  through  the  Waal  by  Dortrecht  and  Helvoetsluys — with 
the  use  of  the  canal  between  the  latter  place  and  Voovre.  Various  and 
particular  regulations  were  made  by  this  Treaty  concerning  police  and 
tolls ;  and  it  was  especially  stipulated,  that,  if  the  aforesaid  outlets  to 
r*1811  *^e  sea  snou^  be  *dried  up,  the  government  of  the  Netherlands, 
J  in  whose  dominions  they  were,  should  indicate  other  courses  to 
the  sea  equal  in  convenience  to  those  used  for  navigation  by  its  own 
subjects. 

CLXIX.  But  on  no  occasion  were  the  principles  of  this  branch  of  In- 
ternational Law  more  elaborately  discussed  than  in  the  cases  of  the  great 

(/)  Annual  Reg.  vol.  Ixviii.,  year  1826,  pp.  259—263. 

(g)  "Conventions  entre  les  Gouvernemens  des  Etats  riverains  du  Rhin,  et  r6gle- 
ment  relatif  i  la  navigation  du  dit  fleuve  conclue  a  Mayence  le  31  Mars,  1831,  et 
dont  les  ratifications  ont  6t6  e'change'es  re"ciproquement  le  16  Juin." — Martens,  Rec. 
de  Traite's,  vol.  xvii.  p.  252. 


RIVERS.  161 

American  rivers,  the  Mississippi  and  the  St.  Lawrence.  By  the  Peace 
of  Paris  and  Hubertsburg  in  1763,  France  ceded  Canada,  and  Spain 
ceded  Florida  to  Great  Britain.  France  lost  by  this  Treaty  all  her  pos- 
sessions in  North  America,  Louisiana  having  been  previously  ceded  to 
Spain  as  an  indemnity  for  Florida.  The  boundary  line  between  the 
British  and  French  possessions  in  North  America  was  drawn  through 
the  middle  of  the  Mississippi,  from  its  source  to  the  Iberville,  and  through 
the  Iberville  and  the  lakes  of  Maurepos  and  Pontchartrain  to  the  sea: 
and  the  free  navigation  of  the  Mississippi  was  secured  to  British  subjects 
upon  the  ground,  which  has  since  proved  to  be  erroneous  in  point  of 
fact,  that  the  Mississippi  took  its  rise  in  the  British  territory.  Subse- 
quently France  ceded  Louisiana  to  Spain,  and  to  the  same  power  Great 
Britain,  at  the  Treaty  of  Versailles  in  1783,  "  retroceded"  (to  use  the 
language  of  the  Treaty)  Florida.  Spain  thus  became  sovereign  over 
both  banks  of  the  river  for  a  considerable  distance  above  and  at  its 
mouth :  and  on  this  fact  she  built  her  claim  to  an  exclusive  navigation 
of  the  river  below  the  point  of  the  southern  boundary  of  the  United 
States. 

The  recognition  of  the  independence  of  the  United  States  was  the 
object  of  the  Treaty  of  1783;  and  by  the  eighth  article  it  was  provided, 
that  "  the  navigation  of  the  river  Mississippi  shall  for  ever  remain  free 
and  open  to  the  subjects  of  Great  Britain  and  the  citizens  of  the  United 
States."  The  United  States  therefore  resisted  the  claim  of  Spain,  taking 
their  stand  upon  these  articles  in  the  treaties  of  1763  and  1783,  and  also 
upon  the  general  principles  of  International  Law.  They  insisted  that 
by  this  law  a  river  was  open  to  all  riparian  inhabitants,  and  that  the 
upper  *inhabitants  of  a  river  had  a  right  to  descend  the  stream,  r^-ion-i 
in  order  to  find  an  outlet  for  their  produce;  and  that,  even  if  L 
Spain  possessed  an  exclusive  dominion  over  the  river  between  Florida 
and  Louisiana,  that  an  innocent  passage  over  it  was  not  the  less  on  that 
account  the  right  of  the  inhabitants  of  its  upper  banks.  The  dispute 
was  ended  in  1795  by  the  Treaty  of  San  Lorenzo  el  Real;  the  fourth 
article  of  which  provided  that  the  Mississippi  should  be  open  to  the 
navigation  of  the  citizens  of  the  United  States  from  its  source  to  the 
ocean.  By  the  twenty-second  article  they  were  permitted  to  deposit 
their  goods  at  New  Orleans,  and  to  export  them  from  thence  on  payment 
of  warehouse  hire. 

The  United  States  having  acquired  Louisiana,  by  the  cession  of  Napo- 
leon, on  the  30th  April,  1803, (&)  and  Florida  by  Treaty  with  Spain  on 
the  22d  February,  1819,  thereby  included  within  their  territory  the 
whole  of  this  magnificent  stream  the  Mississippi,  from  its  source  to  the 
Gulf  of  Mexico.  The  stipulation  in  favour  of  British  subjects,  in  the 
article  of  the  Treaty  of  1783,  was  not  renewed  in  the  Treaty  of  Ghent, 
24th  December,  1814;  and  it  is  therefore  maintained  by  the  United 
States  that  the  right  of  navigating  the  Mississippi  is  vested  exclusively 
in  their  subjects. (t) 

(A)  Vide  post.  (t)  Wheaton's  Hist.  p.  506-9;  E16m.  t.  i.  p.  185-6. 


162        PHILLIMORE     ON     INTERNATIONAL     LAW. 

CLXX.  The  case  of  the  navigation  of  the  St.  Lawrence  was  as  fol- 
lows :(j)— 

Great  Britain  possessed  the  northern  shores  of  the  lakes,  *and 
of  the  river  in  its  whole  extent  to  the  sea,  and  also  the  southern 
bank  of  the  river  from  the  latitude  forty-fivo  degrees  north  to  its  mouth. 
The  United  States  possessed  the  southern  shores  of  the  lakes,  and  of  the 
St.  Lawrence,  to  the  point  where  their  northern  boundary  touched  the 
river.  These  two  governments  were  therefore  placed  pretty  much  in  the 
same  attitude  towards  each  other,  with  respect  to  the  navigation  of  the 
St.  Lawrence,  as  the  United  States  and  Spain  had  been  in  with  respect 
to  the  navigation  of  the  Mississippi,  before  the  acquisitions  of  Louisiana 
and  Florida. 

The  argument  on  the  part  of  the  United  States  was  much  the  same 
as  that  which  they  had  employed  with  respect  to  the  navigation  of  the 
Mississippi.  They  referred  to  the  dispute  about  the  opening  of  the 
Scheldt  in  1784,  and  contended  that,  in  the  case  of  that  river,  the  fact 
of  the  banks  having  been  the  creation  of  artificial  labour  was  a  much 
stronger  reason,  than  could  be  said  to  exist  in  the  case  of  the  Mississippi, 
for  closing  the  mouths  of  the  sea  adjoining  the  Dutch  Canals  of  the  Sas 
and  the  Swin,  and  that  this  peculiarity  probably  caused  the  insertion  of 
the  stipulation  in  the  Treaty  of  Westphalia;  that  the  case  of  the  St. 
Lawrence  differed  materially  from  that  of  the  Scheldt,  and  fell  directly 
under  the  principle  of  free  navigation  embodied  in  the  Treaty  of  Vienna 
respecting  the  Rhine,  the  Neckar,  the  Mayne,  the  Moselle,  the  Meuse, 
and  the  Scheldt.  But  especially  it  was  urged,  and  with  a  force  which 
it  must  have  been  difficult  to  parry,  that  the  present  claim  of  the  United 
States  with  respect  to  the  navigation  of  the  St.  Lawrence,  was  precisely 
of  the  same  nature  as  that  which  Great  Britain  had  put  forward  with 
respect  to  the  navigation  of  the  Mississippi  when  the  mouth  and  lower 
shores  of  that  river  were  in  the  possession  of  another  State,  and  of  which 
claim  Great  Britain  had  procured  the  recognition  by  the  Treaty  of  Paris 
in  1763. 

The  principal  argument  contained  in  the  reply  of  Great  Britain  was, 
that  the  liberty  of  passage  by  one  nation  through  the  dominions  of  an- 
r*184~l  otner  was>  according  to  the  *doctrine  of  the  most  eminent  writers 
-I  upon  International  Law,  a  qualified  occasional  exception  to  the 
paramount  rights  of  property;  that  it  was  what  these  writers  called  an 
imperfect,  and  not  &  perfect (k)  right;  that  the  Treaty  of  Vienna  did  not 
sanction  this  notion  of  a  natural  right  to  the  free  passage  over  rivers, 

(/)  Wheaton's  Hist.  5,  12,  17,  citing  Mr.  Secretary  Clay's  letter  to  Mr.  Gallatin, 
American  Minister  in  London,  June  19th,  1826. 

Congress  Documents,  sess.  1827,  1828,  No.  43. 

American  Paper  on  the  Navigation  of  the  St.  Lawrence. — Ib.  sess.  1827,  1828, 
No.  43. 

British  Paper  on  the  Navigation  of  the  St.  Lawrence. 

Wheaton's  Ele"m.  i.  187. 

State  Papers  (English),  1826-9. 

Times  Newspaper,  Oct.  25,  26,  1850. 

(k)  The  inaccuracy  of  this  phrase  has  been  already  noticed.  It  was  intended 
to  say  that  the  navigation  was  a  right  not  stricti  juris,  but  a  concession  of  comity. 


RIVERS.  163 

but,  on  the  contrary,  the  inference  was  that,  not  being  a  natural  right, 
it  required  to  be  established  by  a  convention;  that  the  right  of  passage 
once  conceded  must  hold  good  for  other  purposes  besides  those  of  trade 
in  peace,  for  hostile  purposes  in  time  of  war;  that  the  United  States 
could  not  consistently  urge  their  claim  on  principle  without  being  pre- 
pared to  apply  that  principle  by  way  of  reciprocity,  in  favour  of  British 
subjects,  to  the  navigation  of  the  Mississippi  and  the  Hudson,  to  which 
access  might  be  had  from  Canada  by  land  carriage  or  by  the  Canals  of 
New  York  and  Ohio. 

The  United  States  replied,  that  practically  the  St.  Lawrence  was  a 
strait,(l}  and  was  subject  to  the  same  principles  of  law ;  and  that  as  straits 
are  accessory  to  the  seas  which  they  unite,  and  therefore  the  right  of 
navigating  them  is  common  to  all  nations,  so  the  St.  Lawrence  connects 
with  the  ocean  those  great  inland  lakes,  on  the  shores  of  which  the  sub- 
jects of  the  United  States  and  Great  Britain  both  dwell;  and,  on  the 
same  principle,  the  natural  link  of  the  river,  like  the  natural  link  of  the 
strait,  must  be  equally  available  for  the  purposes  of  passage  by  both. 
The  passage  over  land,  which  was  always  pressing  upon  the  minds  of  the 
writers  on  International  Law,  is  intrinsically  different  from  a  passage 
over  water;  in  the  latter  instance,  no  detriment  or  inconvenience  can  be 
sustained  by  the  country  to  which  it  belongs.  The  track  of  the  ship  is 
effaced  as  soon  as  made;  the  track  of  an  army  may  leave  serious  and  last- 
ing injury  behind.  The  *United  States  would  not  "shrink"  I-*-IQK-I 
from  the  application  of  the  analogy  with  respect  to  the  naviga-  L 
tion  of  the  Mississippi,  and  whenever  a  connection  was  effected  between 
it  and  Upper  Canada,  similar  to  that  existing  between  the  United  States 
and  the  St.  Lawrence,  the  same  principle  should  be  applied.  It  was, 
however,  to  be  recollected,  that  the  case  of  rivers  which  both  rise  and 
disembogue  themselves  within  the  limits  of  the  same  nation  is  very  dis- 
tinguishable, upon  principle,  from  that  of  rivers  which,  having  their 
sources  and  navigable  portions  of  their  streams  in  States  above,  discharge 
themselves  within  the  limits  of  other  States  below. 

Lastly,  the  fact,  that  the  free  navigation  of  rivers  had  been  made  a 
matter  of  convention  did  not  disprove  that  this  navigation  was  a  matter 
of  natural  right  restored  to  its  proper  position  by  treaty. 

The  result  of  this  controversy  has  hitherto  produced  no  effect.  Great 
Britain  has  maintained  her  exclusive  right.  The  United  States  still  re- 
main debarred  from  the  use  of  this  great  highway,  and  are  not  permitted 
to  carry  over  it  the  produce  of  the  vast  and  rich  territories  which  border 
on  the  lakes  above  to  the  Atlantic  Ocean. 

It  seems  difficult  to  deny  that  Great  Britain  may  ground  her  refusal 
upon  strict  Law ;  but  it  is  at  least  equally  difficult  to  deny,  first,  that  in 
so  doing  she  exercises  harshly  an  extreme  and  hard  law ;  secondly,  that 
her  conduct  with  respect  to  the  navigation  of  the  St.  Lawrence  is  in  glar- 
ing and  discreditable  inconsistency  with  her  conduct  with  respect  to  the 
navigation  of  the  Mississippi.  On  the  ground  that  she  possessed  a  small 

(I)  Vide  post,  the  law  as  to  Straits. 


164  PHILLIMORE     ON     INTERNATIONAL     LAW. 

tract  of  domain  in  which  the  Mississippi  took  its  rise,  she  insisted  on 
her  right  to  navigate  the  entire  volume  of  its  waters  :  on  the  ground  that 
she  possesses  both  banks  of  the  St.  Lawrence  where  it  disembogues  itself 
into  the  sea,  she  denies  to  the  United  States  the  right  of  navigation 
though  about  one  half  of  the  waters  of  Lakes  Ontario,  Erie,  Huron,  and 
Superior,  and  the  whole  of  Lake  Michigan  through  which  the  river  flows, 
are  the  property  of  the  United  States. 

f*1  Rfil  *^n  ^n§^s^  writer  upon  International  Law  cannot  but  express 
J  a  hope,  that  this  summum  jus,  which  in  this  case  approaches  to 
summa  injuria,  may  be  voluntarily  abandoned  by  his  country.  Since 
the  late  Revolution  in  the  South  American  Provinces,  by  which  the  do- 
minion of  Rosas  was  overthrown,  there  appears  to  be  good  reason  to  hope 
that  the  States  of  Paraguay,  Bolivia,  Buenos  Ayres,  and  Brazil,  will 
open  the  River  Parana  to  the  navigation  of  the  world. (m) 

CLXXI.  The  question  whether  the  open  sea,  or  main  ocean,  could  be 
appropriated(ra)  by  any  State  to  the  exclusion  of  others,  has  been  the 
subject  of  celebrated  controversies.  Spain  and  Portugal,  at  different 
epochs,  have  claimed  exclusive  right,  founded  upon  the  titles  of  previous 
discovery,  possession,  and  Papal  grants,  to  the  navigation,  commerce, 
and  fisheries  of  the  Atlantic  and  Pacific  Oceans.  The  Mare  Liberurn, 
written  by  G-rotius  in  1609,  the  chief  object  of  which  was  to  demonstrate 
the  injustice  of  the  Portuguese  pretensions,  founded  on  their  discovery  of 
the  Cape  of  Good  Hope,  to  the  exclusive  navigation  of  the  African  and 
the  Indian  seas, — the  Mare  Clausum,  written  by  our  own  countryman  Sel- 
den,  to  establish  the  exclusive  right  of  Great  Britain  to  the  British  seas, 
— Puffendorf,  in  the  fifth  chapter  of  his  fourth  book,  "  De  Jure  naturale 
Gentium," — and  the  essay  of  Bynkershoek  in  1702,  De  Dominio  Maris, 
have  exhausted  *this  theme. (o)  It  is  sufficient  to  say,  that  the 
reason  of  the  thing,  the  preponderance  of  authority,  and  the  prac- 
tice of  nations,  have  decided,  that  the  main  ocean,  inasmuch  as  it  is  the 
necessary  highway  of  all  nations,  and  is  from  its  nature  incapable  of 
being  continuously  possessed,  cannot  be  the  property  of  any  one  State. 

(m)  See  Speech  of  the  Earl  of  Clarendon,  Secretary  of  Foreign  Affairs,  in  the 
House  of  Lords,  June  3rd,  1853. — Hansard's  Parl.  Deb.  vol.  cxxvii.  No.  6,  p. 
1073-4. 

(ra)  Albericus  Gentilis,  lib.  i.  c.  8.  Advocationes  Hispanicae,  maintains  (in  1613) 
the  claim  of  Great  Britain  to  the  Narrow  Seas. 

Wheaton's  Law  of  Nations,  1,  225-9. 

Vattel,  lib.  i.  c.  xxiii. 

Martens,  lib.  ii.  c.  1,  s.  43.  De  1'Ocean,  lib.  iv.  c.  iv.  s.  157.  Droits  sur  1'Ocean 
et  sur  la  Mur  des  Indes. 

Giinther,  ii.  p.  28.  "  Das  Hauptwerk  heirbei  kommt  darauf  an,  das  Man  die 
offene  See,  oder  das  grosse  Weltmeer  von  den  einzelnen  Theilen  desselben,  die 
an  oder  zwischen  die  Lander  der  nationen  gehen  Nnterscheide." 

(o)  When  the  Spanish  envoy,  Mendoza,  complained  to  the  Queen  Elizabeth  that 
English  ships  presumed  to  trade  in  the  Indian  Seas,  that  queen  gave  for  answer, — 
"  That  she  saw  no  reason  that  could  exclude  her,  or  other  nations,  from  navigat- 
ing to  the  Indies,  since  she  did  not  acknowledge  any  prerogative  that  Spain  might 
claim  to  that  effect,  and  much  less  any  right  in  it  to  prescribe  laws  to  those  who 
owed  it  no  obedience,  or  to  debar  them  trade.  That  the  English  navigated  on 
the  ocean,  the  use  of  which  was  like  that  of  the  air,  common  to  all  men,  and 
which,  by  the  very  nature  of  it,  could  not  fall  within  the  possession  or  property 
of  any  one." — Camd.  in  vita  Elizabeth,  ad  ann.  1580,  p.  m.  328  et  seq. 


RIVERS.  165 

"  Igitur  quicquid  dicat  Titius,  quicquid  Moevius,  ex  possessione  jure  na- 
tural! et  gentium  suspenditur  dominium,  nisi  pacta  dominiuin,  citra  pos- 
sessionem,  defendant,  ut  defendit  jus  cujusque  civitatis  proprium.(p)  It 
is  possible,  as  is  indeed  apparent  from  this  citation,  that  a  nation  may 
acquire  exclusive  right  of  navigation  and  fishing  of  the  main  ocean  as 
against  another  nation,  by  virtue  of  the  specific  provisions  of  a  treaty ; 
for  it  is  competent  to  a  nation  to  renounce  a  portion  of  its  rights ;  and 
there  have  been  instances  of  such  renunciation,  both  in  ancient  and 
modern  times. 

CLXXII.  The  treaty  of  peace,  justly  called  "famous"  by  Demos- 
thenes^) and  Plutarch, (r)  whereby  the  Athenians  *extorted  from  r#-ioo-i 
the  Persians  a  pledge  that  they  would  not  approach  the  Greek  "- 
sea  within  the  space  of  a  day's  journey  on  horseback,  and  that  no  ship 
of  war  should  sail  between  the  Cyanean  and  Chelidonian  isles ;  the  treat- 
ies whereby  the  Carthaginians  bound  the  Romans  not  to  navigate  the 
Mediterranean  beyond  a  certain  point,  and  whereby  the  Romans  imposed 
restrictions  of  the  like  kind  upon  the  Illyrians,  and  on  King  Antiochus ; 
— these  are  memorable  examples  of  the  voluntary  resignation  of  a  nation's 
intrinsic  rights. 

So,  in  modern  times,  the  House  of  Austria(s)  has  renounced,  in  favour 
both  of  the  English  and  Dutch,  her  right  to  send  ships  from  the  Belgic 
provinces  to  the  East  Indies  :  and  the  Dutch  attempted  to  interdict 
Spanish  ships,  sailing  to  the  Philippine  Islands,  from  doubling  the  Cape 
of  Good  Hope. 

CLXXIII.  Instances  of  this  kind,  however,  are  far  from  proving  that 
the  main  ocean  is  capable  of  becoming  property.  « Possunt  enim  ut 
singuli,"  (Grotius  truly  remarks)  "  ita  et  populi  pactis,  non  tantum  de 
jure  quod  propriS  sibi  competit ;  sed  et  de  eo  quod  cum  omnibus  homi- 
mbus  commune  habent,  in  gratiam  ejus  cujus  id  interest  decedere."(H 
He  illustrates  this  position,  according  to  his  wont,  by  a  reference  to  the 
Roman  Law.  A  person  sold  his  maritime  farm  with  the  condition  that 

(p)  Bynkershoek,  Opera,  t.  vi.  p.  361. 

(j)  "  KaXXtav  rdv  'linrovdeovj  Tdvravrriv  rfiv  {nro  iravTiav  8pv\\ov[tevriv  elprjvriv  irpttrftevaavTa.) 
"iinrov  ftiv  Spdr/ov  fiftcpaf  ire^fi  [in  Karaflaiveiv  iirl  rfjv  6a.\ai~rav  /?a<nXea  ivros  6i  XtXiJovscuv  /tat 

Kvaveaiv,  ir\oiu>  ^a/cpoT  /tri  ir^tiv." — Orat.  de  falsa  Legat.,  Demosth. 

(r)  "ToiJro  rd  epyov  ovrcoj  ira-nzivwat  rfiv  yvtopriv  rov  ffaaiXcdi;,  &GTE  avvBctrQat  ryv  irtpi- 
ffofiTOv  tipijvriv  iKfivrjv,  "TTTTOV  fiiv  Spdfiov  del  rrjg  'E\\riviKrJs  dvsXf"  6a\d<rcrris,  Iviov  Si  KWOVEOJO 
nai  Xe\iSoviu>v  fiaxpa  viji  ical  xaX«re/</?(iX&>  ^»)  irXeiv." — Plutarch,  in  vita  Cimon. 

Grotius,  1.  ii.  c.  iii.  s.  15. 

Vattel,  1.  i.  c.  xxiii.  s.  284. 

(s)  Traite  de  Vienne,  16  Mars.  1731,  Art.  5. 

(t)  Grotius,  1.  ii,  c.  iii.  s.  15. 

Vattel,  1.  i.  c.  xxiii.  s.  284. 

Barbeyrac  remarks  in  a  note  on  this  passage, — "  Cela  est  vrai ;  mais  rien 
n'empeche  aussi  que,  quand  on  fait  des  traites  comme  ceux  dont  il  s'agit,  on  n'ait 
dessein  de  s'assurer  par  1&  la  propriete  de  quelque  mer,  et  d'obliger  les  autres  4  la 
reconnoitre.  M.  Vitrarius,  dans  son  Abrege  de  notre  Auteur  (1.  ii.  c.  iii.  s.  18),  pre- 
tend, que,  si  celui  qui  fait  un  tel  traite  etoit  deja  maitre  de  la  mer  dont  il  yeut  que 
1'autre  s'eloigne,  il  ne  serait  pas  necessaire  de  stipulur  une  telle  clause.  Mais  il 
ne.  s'est  pas  souvenu  de  ce  qu'il,  etablit  lui-m§me,  apres  notre  Auteur  (1.  ii.  c.  xv.,) 
qu'il  y  a  des  traites  qui  roulent  sur  des  choses  deja  dues,  meme  par  le  Droit 
Naturel." 


166  PHILLIMORE     ON    INTERNATIONAL    LAW. 

r*18Q1  *^e  Purcnaser  should  not  fish  for  thunnies*to  the  prejudice  of 
J  another  maritime  farm,  which  the  seller  retained  in  his  posses- 
sion. Upon  this  case,  Ulpian  gave  his  opinion  that,  although  the  sea 
belonged  to  the  class  of  things  which  could  not  be  subjected  to  a  servi- 
tus(u}  of  this  kind,  yet  the  bona  fides  of  the  contract  required  that  the 
restriction  should  be  binding  against  the  purchaser,  and  those  who  suc- 
ceeded to  his  rights  and  estates. 

The  right  of  navigation,  fishing,  and  the  like,  upon  the  open  sea, 
being  jura  merse  facultatis,  rights  which  require  a  continuous  exercise 
to  maintain  their  validity,  but  which  may  or  may  not  be  exercised 
according  to  the  free  will  and  pleasure  of  those  entitled  to  them,  can 
neither  be  lost  by  non-user  or  prescribed  against,  nor  acquired  to  the 
exclusion  of  others  by  having  been  immemorially  exercised  by  one 
nation  only.  No  presumption  can  arise  that  those  who  have  not  hitherto 
exercised  such  rights,  have  abandoned  the  intention  of  ever  doing  so.(v) 
r*1Qft~l  *CLXXIV.  But  though  no  presumption  can  arise,  it  is  the 
•J  opinion  of  Vattel, — who  holds  most  explicitly,  in  more  than  one 
part  of  his  work,  the  doctrine  which  has  just  been  laid  down — that  such 
non-user  on  the  part  of  other  nations  may  possibly,  under  certain  cir- 
cumstances, become  clothed  with  the  character  of  a  tacit  consent  and 
convention,  which  may  found  a  title  in  one  nation  to  exercise  such  rights 
to  the  exclusion  of  others.  "  Qu'une  nation  en  possession  de  la  naviga- 
tion et  de  la  peche  en  certains  parages,  y  pretende  un  droit  exclusif,  et 
defende  a  d'autres  d'y  prendre  part,  si  celles-ci  obeissent  a  cette  defense, 
avec  des  marques  suffisantes  d'acquiescement,  elles  renoncent  tactitement 
a  leur  droit  en  faveur  de  celle-la,  et  lui  en  etablissent  un,  qu'elle  peut 
legitimement  soutenir  contre  elles  dans  la  suite,  surtout  lorsqu'il  est 
confirme  par  un  long  usage."(w)  _ 

CLXXV.  Mr.  Wheaton  does  not  appear  to  agree  with  the  qualification 
of  the  doctrine  contained  in  the  passage  just  cited ;  but  the  reasoning  of 
Vattel  does  not  seem  to  be  unsound  :  the  case  for  its  application  is  not 
often  likely  to  occur. 

(u)  Dig.  1.  viii.  t.  iv.  leg.  13. — "  Venditor  fundi  Geroniam  fundo  Batriano,  quern 
retinebat,  legem  dederat,  ne  contra  eum  piscatio  thynnaria  exerceretur.  Quamvis 
mari,  quod  natura  omnibus  patet,  servitus  imponi  privata  lege  non  potest,  quia 
tamen  bona  fides  contractus  legem  servari  venditionis  exposcit,  personae  possi- 
dentium  aut  in  jus  eorum  succedentium  per  stipulationis  vel  venditionis  legem 
obligantur." 

(v)  Vattel,  1.  i.  c.  viii.  s.  95  :  "Si  les  droits  touchant  le  commerce  sont  sujets  a 
la  prescription." 

Lib.  i.  c.  xxiii.  s.  285-6. 

Puffendorf,  Jur.  Nat.  et  Gent.  1.  iv.  c.  v.  s.  5. 

Heffters,  s.  74:  "Sogar  ein  unvordenklicher  Besitzstand,  wenn  er  nicht  ein 
freiwilliges  Zugestandniss  anderer  Nationen  deutlich  erkennen  lasst,  vermag  keine 
ausschliesslichen  Befugnisse  bei  solchen  res  merce  facultatis  zu  ertheilen." 

Wheaton's  Elements,  vol.  i.  p.  228  :  "  The  authority  of  Vattel  would  be  full  and 
explicit  to  the  same  purpose,  were  it  not  weakened  by  the  concession,  that  though 
the  exclusive  right  of  navigation  or  fishery  in  the  sea  cannot  be  claimed  by  one 
nation  on  the  ground  of  immemorial  use,  nor  lost  to  others  by  non-user  on  the 
principle  of  prescription,  yet  it  may  be  thus  established  where  the  non-user 
assumes  the  nature  of  a  consent  or  tacit  agreement,  and  thus  becomes  a  title  in 
favour  of  one  nation  against  another." 

(w)  Vattel,  Le  Droit  des  Gens,  t.  i.  1.  i.  c.  xxiii.  s.  286. 


RIVERS.  167 

CLXXVI.  In  1790,  May  25,(x)  Lord  Grenville  vindicated  the  British 
dominium  over  Nootka  Sound  against  the  Spaniards.  In  a  message 
laid  before  both  Houses  of  Parliament  it  was  said  that  "  His  Majesty 
has  received  information,  that  two  vessels  belonging  to  His  Majesty's 
subjects,  and  navigated  under  the  British  flag;  and  two  others,  of  which 
the  description  is  not  hitherto  sufficiently  ascertained,  have  been  captured 
at  Nootka  Sound,  on  the  north-western  coast  of  America,  by  an  officer 
commanding  two  Spanish  ships  of  war ;  that  the  cargoes  of  the  British 
vessels  have  been  seized,  and  that  their  officers  and  crews  have  been  sent 
as  prisoners  to  a  Spanish  port. 

*"  The  capture  of  one  of  these  vessels  had  before  been  ^notified  r-^  Q-.  -. 
by  the  Ambassador  of  His  Catholic  Majesty,  by  order  of  his  L 
court,  who,  at  the  same  time,  desired  that  measures  might  be  taken  for 
preventing  His  Majesty's  subjects  from  frequenting  those  coasts  which 
were  alleged  to  have  been  previously  occupied  and  frequented  by  the 
subjects  of  Spain.  Complaints  were  also  made  of  the  fisheries  carried 
on  by  His  Majesty's  subjects  in  the  seas  adjoining  to  the  Spanish  con- 
tinent, as  being  contrary  to  the  rights  of  the  Crown  of  Spain.  In  con- 
sequence of  this  communication,  a  demand  was  immediately  made,  by 
His  Majesty's  order,  for  adequate  satisfaction,  and  for  the  restitution  of 
the  vessel  previous  to  any  other  discussion. 

"  By  the  answer  from  the  Court  of  Spain,  it  appears  that  this  vessel 
and  her  crew  had  been  set  at  liberty  by  the  Viceroy  of  Mexico;  but 
this  is  represented  to  have  been  done  by  him  on  the  supposition  that 
nothing  but  the  ignorance  of  the  rights  of  Spain  encouraged  the  indivi- 
duals of  other  nations  to  come  to  those  coasts  for  the  purpose  of  making 
establishments,  or  carrying  on  trade ;  and  in  conformity  to  his  previous 
instructions,  requiring  him  to  show  all  possible  regard  to  the  British 
nation. 

"  No  satisfaction  is  made  or  offered,  and  a  direct  claim  is  asserted  by  the 
Court  of  Spain  to  the  exclusive  rights  of  sovereignty,  navigation,  and 
commerce  in  the  territories,  coasts,  and  seas  in  that  part  of  the  world. 

"  His  Majesty  has  now  directed  his  minister  at  Madrid  to  make  a  fresh 
representation  on  this  subject,  and  to  claim  such  full  and  adequate 
satisfaction  as  the  nature  of  the  case  evidently  requires.  And,  under 
these  circumstances,  His  Majesty,  having  also  received  information  that 
considerable  armaments  are  carrying  on  in  the  ports  of  Spain,  has  judged 
it  indispensably  necessary  to  give  orders  for  making  such  preparations  as 
may  put  it  in  His  Majesty's  p.ower  to  act  with  vigour  and  effect  in 
support  of  the  honour  of  his  Crown  and  the  interests  of  his  people. 
And  His  Majesty  recommends  it  to  his  faithful  Commons,  on  whose  zeal 
and  public  spirit  he  has  the  most  perfect  reliance,  to  enable  *him  _..._--. 
to  take  such  measures,  and  to  make  such  augmentation  of  his  L 
forces,  as  may  be  eventually  necessary  for  this  purpose. 

"It  is  His  Majesty's  earnest  wish,  that  the  justice  of  His  Majesty's 
demands  may  ensure,  from  the  wisdom  and  equity  of  His  Catholic 
Majesty,  the  satisfaction  which  is  so  unquestionably  due ;  and  that  this 

(z)  Annual  Register,  vol.  xxxii.,  1790. 


168  PHILLIMORE     ON     INTERNATIONAL     LAW. 

affair  may  be  terminated  in  such  a  manner  as  to  prevent  any  grounds  of 
misunderstanding  in  future,  and  to  continue  and  confirm  that  harmony 
and  friendship  which  has  so  happily  subsisted  between  the  two  Courts, 
and  which  His  Majesty  will  always  endeavour  to  maintain  and  improve, 
by  all  such  means  as  are  consistent  with  the  dignity  of  His  Majesty's 
Crown,  and  the  essential  interests  of  his  subjects."  The  dispute  was 
terminated  by  the  Nootka  Sound  Convention,  the  importance  of  which 
was  much  insisted  upon  in  the  recent  discussions  between  Great  Britain 
and  the  North  American  United  States  relative  to  the  question  of  the 
Oregon  boundary. (yj 

OLXXVII.  Upon  the  17th  of  April,  1824,(z)  a  convention  was  entered 
into  at  St.  Petersburgh,  between  the  United  States  of  America  and 
Russia,  respecting  the  navigation  of  the  Pacific  Ocean,  and  the  forming 
of  settlements  upon  the  north-western  shores  of  America.  By  this  con- 
vention it  was  agreed  generally,  that  the  subjects  of  both  countries 
might  freely  navigate  the  Pacific,  or  South  Sea,  occupy  shores  as  yet 
unoccupied,  and  enter  into  commerce  with  the  native  inhabitatants  :  and 
it  was  stipulated  that  for  the  future  it  should  be  unlawful  for  the  subjects 
of  the  United  States  to  make  any  settlement  on  the  north-west  coast  of 
America,  or  of  the  adjacent  isles,  "au  nord  du  cinquantequatrieme 
degre  et  quarante  minutes  de  latitude  septentrionale;"  and  for  any  sub- 
r*icm  Jec*s  °f  Russia  to  make  any  settlement  *"  au  sud  de  la  meme 
-I  parallele."(a)  This  convention  therefore  restricts  the  natural 
rights  of  these  two  countries ;  but  it  cannot  extend  beyond  them,  or  have 
any  effect,  per  se,  upon  other  countries. 

CLXXVIII.  Denmark(i)  has  not  always  confined  her  pretensions  of 
sovereignty  to  the  narrow  sea  of  the  Baltic,  but  has  also  extended  them 
to  the  open  north  sea.(c)  Queen  Elizabeth  complained  in  a  letter  which 
she  wrote  to  the  king  of  Denmark,  in  1600,  of  the  manner  in  which 
British  vessels  were  prevented  from  fishing  in  this  sea,  maintaining  their 
right  to  do  so  as  resting  upon  an  undoubted  principle  of  law.(</). 


[*194]  "CHAPTER    VI. 

NARROW   SEAS,   AS   DISTINGUISHED   FROM   THE   OCEAN. 

CLXXIX.  Claims  have  been  preferred  by  different  nations  to  the 
exclusive  dominion  over  the  seas  surrounding  their  country ;  if  not  to 

(y)  Vide  post.  (z)  Ratified  llth  January,  1825. 

(a)  Martens  et  De  Cussy,  Recueil  de  Trailers,  t.  iii.  p.  659. 

(b)  Schlegel,  Staatsrecbt  Danemark.  (c)  Vide  post,  p.  202. 

(d)  "  Regiam  proinde  protectionem  nostram  implorant,  atque  humilker  suppli- 
cant ne  ab  honestissima  hac  vivendi  ratione  (cui  jam  inde  a  primis  annis  assueve- 
runt)  alti  nempe  maris  piscatione,  Jure  Gentium  omniumque  Nationum  moribus 
libera,  excludi  illos  facile  permittamus." — Rymer,  Feed.,  t.  xvi.  p.  395.,  A  Regina  ad 
Regem  Danise  ;  super  Piscatione  in  Alto  Mari  permittenda. 


NARROW     SEAS.  169 

every  part  of  such  seas,  to  an  extent  far  beyond  the  limits  assigned  in 
the  foregoing  paragraphs. 

This  kind  of  claim  is  distinguished  from  the  claim  of  jurisdiction  over 
the  ocean  by  being  confined  to  what  are  called  the  narrow  or  adjacent 
seas,  they  not  being  (it  is  contended),  like  the  ocean,  the  great  highway 
of  the  nation.  It  is  further  distinguished  from  the  case  of  the  Straits 
which  just  has  been  discussed,  by  the  fact  of  the  claimants  not  possessing 
the  opposite  shore. 

CLXXX.  This  claim  is  rested  upon  immemorial  usage,  upon  national 
records,  upon  concessions  of  other  States,  upon  the  language  of  treaties. 
Considering  the  nature  of  the  claim,  and  of  the  subject  over  which  it  is 
to  be  exercised,  it  cannot  be  built  securely  upon  a  less  foundation  than 
the  express  provisions  of  positive  treaty,  and  can  be  valid  only  against 
those  nations  who  have  signed  such  Treaty.  "There  may,  by  legal  pos- 
sibility" (as  Lord  Stowell  says,(a) )  "exist  a  peculiar  property  excluding 
the  universal  or  common  use;"  but  the  strongest  presumption  of  law  is 
adverse  to  any  such  pretension.  The  Portuguese  affected  at  one  time 
to  prevent  any  foreign  vessel  from  navigating  the  African  seas  near  the 
Bissagos  Islands;  and  it  is  known  that  Great  Britain  once  laid  claim  to 
exclusive  rights  of  property  and  jurisdiction,  not  merely  over  pie-inc-i 
the  British  Channel  extending  from  the  island  of  Quessant  to  the  L 
Pas  de  Calais,  but  over  the  four  seas  which  surround  her  coasts.  (&)  Nor 
was  this  only  while  the  Duchy  of  Normandy  was  held  with  the  British 
dominions;  or  even  while  Calais,  or  the  Pasde  Calais,  belonged  to  Great 
Britain,  a  circumstance  of  considerable  weight  with  respect  to  their  claim. 
Albericus  Gentilis,  in  one  of  his  Advocationes  Hispanicae(c)  published 
in  1613,  supports  these  pretensions.  Queen  Elizabeth  seized  upon  some 
Hanseatic  vessels  lying  at  anchor  off  Lisbon  for  having  passed  through 
the  sea  north  of  Scotland  without  her  permission. 

CLXXXI.  In  support  of  this  doctrine,  Selden(c?)  wrote  his  celebrated 
Mare  Clausurn,  in  which  he  sought  to  establish  two  propositions: — 1. 
That  the  sea  might  be  property;  2.  That  the  seas  which  washed  the 
shores  of  Great  Britain  and  Ireland  were  subject  to  her  sovereignty  even 
as  far  as  the  northern  pole. 

The  opinions  of  jurists,  as  well  as  the  practice  of  nations,  have  decided, 
that  this  work  did  not  refute  the  contrary  positions  laid  down  by  Grotius 
in  his  Mare  Liberum,  to  which  it  purported  to  be  an  answer.  Selden 
dedicated  his  work  to  Charles  I. ;  and  so  fully  did  that  monarch  imbibe 
its  principles,  that  in  1619  he  instructed  Carleton,  the  British  ambas- 
sador, to  complain  to  the  States- General  of  the  Dutch  provinces  of  the 

(a)  The  Twee  Gebrceders,  3  Robinson's  Ad.  Rep.  339. 
Das  Britannische  Meer,  Giinther,  vol.  ii.  s.  20,  p.  39. 

(b)  Wheaton's  Hist,  part  i.  s.  18,  p.  152,  &c.,  contains  a  clear  and  valuable 
account. 

(c)  Lib.  i.  cap.  viii. 

(d)  Job.  Seldeni,  Mare  Clausum,  sive  de  Dominio  Maris,  lib.  ii. :  "  Primo,  mare 
ex  jure  naturae  sive  gentium  hominum  non  esse  commune,  sed  dominiiprivati  sive 
proprietatis  capax  pariter  ac  tellurem  esse  demonstratur ;  Secundo,  Serenissimun 
Magnse  Britanniae  Regem  maris  circumflui  ut  individuae  atque  perpetuae  Imperii 
Britannic!  appendicis  dominum  esse  asseritur," 

AUGUST,  1854.— 12 


170  PHILLIMORE    ON    INTERNATIONAL    LAW. 

audacity  of  Grotius  in  publishing  his  Mare  Liberuin,  and  to  demand  that 
he  should  be  punished.  Not  less  agreeable  was  this  doctrine  to  Crom- 
r  iQfiT  we^  an<^  *^e  rePublican  *parliament.  They  made  war  upon  the 
-I  Dutch  to  compel  them  to  acknowledge  the  British  empire  over 
these  seas.(e) 

CLXXXII.  The  rights  occasionally  claimed  by  Great  Britain  in  these 
seas  were  chiefly  those  of  exclusive  fishing,  and  of  exacting  the  homage 
of  salute  from  all  foreign  vessels.  But  it  is  very  remarkable  that  Sir 
Leoline  Jenkins,  who  was  in  fact  the  expounder  of  all  international  law 
to  the  government  of  Charles  II.  and  James  II.,  appears  never  to  have 
insisted  upon  these  extravagant  demands,  but  to  have  confined  the  rights 
of  his  country  within  the  just  and  moderate  limits  which  have  been 
already  stated. 

CLXXXIII.  It  is  true  that  the  Dutch  appear  to  have  occasionally  ad- 
mitted the  exclusive  right  of  fishery,  by  making  payment  and  taking  out 
licenses  to  fish — payment  and  licenses  which  were  afterwards  suspended 
by  Treaties  between  England  and  the  Burgundian  princes.  It  is  true 
that,  by  the  fourth  Article  of  the  Treaty  of  Westminster,  concluded  in 
1674,  the  Dutch  conceded  the  homage  of  the  flag  in  the  amplest  manner 
to  the  English.  "It  was  carried"  (says  Sir  W.  Temple,  the  negotiator 
of  the  Treaty)  "to  all  the  height  his  Majesty  could  wish;  and  thereby  a 
claim  of  the  crown,  the  acknowledgment  of  its  dominion  in  the  Narrow 
Seas,  allowed  by  treaty  from  the  most  powerful  of  our  neighbours  at  sea, 
which  had  never  yet  been  yielded  to  by  the  weakest  of  them  that  I  re- 
member in  the  whole  course  of  our  pretence;  and  had  served  hitherto 
but  for  an  occasion  of  quarrel,  whenever  we  or  they  had  a  mind  to  it, 
upon  either  reasons  or  conjectures.'Y/) 

Q71       *CLXXXIV.  Upon  this  concession,  so  humiliating  to  the 

J  countrymen  of  Ruyter  and  Van  Tromp,  so  little  to  be  expected 

by  those  who  in  1667  had  demolished  Sheernessand  set  fire  to  Chatham, 

Bynkershoek(#)  ingeniously  remarks,  "Usu  scilicet  maris  et  fructu  con- 

(e)  Comte  de  Garden,  Traite  Diplom.  t.  i.  p.  402. 

(/)  "  Praedicti  Ordines  Generates  Unitarium  Provinciarum  debite  ex  parte  sua 
agnoscentes  jus  supramemorati  Serenissimi  Domini  Magnse  Britanniae  Regis,  ut 
vexillo  suo  in  maribus  infra  nominandis  honos  babeatur,  declarabunt,  et  declarant, 
concordabuntet  concordant,  quod  quaecunque  naves  aut  navigia  ad  prsefatas  Unitas 
Provincias  spectantia,  give  naves  bellicae,  sire  aliae,  eseque  vel  singulae  vel  in  classi- 
bus  conjunctae,  in  ullis  maribus  a  Promontorio  Finis  Terrce  dicto  usque  ad  medium 
punctum  terras  van  Staten  dictse  in  Norwegia,  quibuslibet  navibus  aut  navigiis  ad 
Serenissimum  Dominum  Magnae  Britannia;  Regem  spectantibus,  seobviam  dederint, 
give  illae  naves  singulae  sint,  vel  in  numero  majori,  si  majestatis  suae  Britannicae 
aplustrum  sive  vexillum  Jack  appellatum  gerant,  prasdictae  Unitarum  Provinciarum 
naves  aut  navigia  vexillum  suum  e  mail  vertice  detrahent  et  supremum  velum  de- 
mittent,  eodem  modo  parique  honoris  testimonio,  quo  ullo  unquam  tempore  aut  in 
illo  loco  antehac  usitatum  fuit,  versus  ullas  Majestatis  suse  Britannicae  aut  ante- 
cessorum  suorum  naves  ab  ullis  Ordinum  Generalium  suorumve  antecessorum 
navibus." — Tractatus  Pacis  inter  Carolum  II.  Regem  Magna?  Britanniae  et  Ordines 
Generales  fcederati  Belgii,  1674,  Art.  4. 

Bynkersboek,  Quaest.  J.  P.  1.  ii.  c.  xxi. 

Temple's  Memoirs,  ii.  p.  250. 

Hume,  vol.  vi.  c.  Hi. 

Wheaton's  Hist.  pp.  155-6. 
^)  Quaest.  J.  P.  lib.  i.  cap.  xxi. 


NARROW     SEAS.  171 

tenti  Ordines,  aliorum  ambitioni,  sibi  non  damnosae,  baud  difficulter 
cedunt."  And  in  his  Treatise  De  Dominio  Maris,  published  in  1702, 
and  before  the  work  from  which  the  extract  just  cited  is  taken,  he  ob- 
serves, on  this  Article  of  the  Treaty, — "  Sed  quod  ita  accipiendum  est, 
ut  omnes  pactiones,  quas,  ut  bello  abstineatur,  pasciscimur,  nempe  Anglis 
id  competere,  quia  in  id  convenit,  per  se  enim  nihil  in  eo  mari  habent, 
praecipuuni.  Porro  ut  ita  hoc  accepi  velim,  ut  ne  credamus  Belgas  eo 
ipso  Anglis  concessisse  illius  maris  dominium,  nam  aliud  est  se  subditum 
profiteri,  aliud  majestatem  alicujus  populi  comiter  conservare,  (ut  haec 
explicat  Proculus  in  Dig.  xlix.  t.  15,  7,  de  Captiv.  et  Postlim.)  fit  hoc, 
ut  intel  ligaraus  alterum  populum  superiorem  esse,  non  ut  intelligamus, 
alterum  non  esse  liberum."(A) 

CLXXXV.  France,  however,  as  Mr.  Wheaton  observes,  never  formally 
acknowledged  the  British  pretension.  Louis  XIV.  published  an  ordi- 
nance on  the  15th  of  April,  1689,  not  *only  forbidding  his  naval  r^-iQo-i 
omcers  from  saluting  the  vessels  of  other  princes  bearing  a  flag  L 
of  equal  rank,  but,  on  the  contrary,  enjoining  them  to  require  the  salute 
from  foreign  vessels  in  such  a  case,  and  to  compel  them  by  force,  in 
whatever  seas  and  on  whatever  coasts  they  might  be  found.  This  ordi- 
nance was  plainly  levelled  at  England.  Accordingly,  in  the  manifesto 
published  by  William  III.  on  the  27th  of  May,  1689,  he  alleged  this 
insult  to  the  British  flag  as  one  of  the  motives  for  declaring  war  against 
France,  (i) 

CLXXXVI.  In  another  part  of  his  very  able  Treatise,  Bynkershoek 
clearly  and  irrefragably  lays  down  the  principles  of  law  applicable  to  the 
occupation  of  the  sea: — "Totum,  qua  patet,  mare  non  minus  jure  natu- 
rali  cedebat  occupanti,  quam  terra  quaevis,  aut  terras  mare  proximum. 
Sed  difficilior  occupatio,  difBcillima  possessio;  utraque  tamen  necessaria 
ad  asserendum  dominium,  jure  videlicet  gentium,  ad  quod  ea  disputatio 
unice  exigenda  est.  Nam  ex  iis,  quae  Cap.  1.  enarravimus,  certum  est 
consequi,  dominium  maris  prima  ab  origine  non  fuisse  quaesitum  nisi 
occupatione,  hoc  est,  navigatione  eo  animo  instituta,  ut  qui  libera  per 
vacuum  ponit  vestigia  princeps,  ejus,  quod  navigat,  maris  esse  velit 
dominus;  certum  est  et  porro  consequi,  non  aliter  id  dominium  retinere, 
quam  possessione  perpetua,  hoc  est,  navigatione,  quse  perpetuo  exercetur 
ad  custodiam  maris,  si  exterum  est,  habendam:  ea  namque  remissa,  re- 
mittitur  dominium,  et  redit  mare  in  causam  pristinam,  atque  ita  rursus 
occupanti  primum  cedit."(7c) 

CLXXXVII.  Thus  the  opinion  of  Sir  Leoline  Jenkins  *and  r#-jqq-i 
Bynkershoek  are  in  harmony  upon  this  question;  and  in  spite  of  L 

(h)  De  Dominio  Maris,  cap.  v. 

(i)  Valin,  Commentaire  sur  1'Ordonnance  de  la  Marine,  liv.  v.  tit.  1,  p.  689  :  De 
la  Liberte  de  la  Peche :  "Que  le  droit  de  pavilion,  qni  appartient  a  la  couronne 
d'Angleterre,  a  e"te"  dispute"  par  son  ordre  (de  Louis  XIV.)  ;  ce  qui  tende  a  la  viola- 
tion de  notre  souverainete  sur  la  mer,  laquelle  a  ete  maintenue  de  tout  temps  par 
nos  predecesseurs,  et  que  rious  sommes  aussi  resolus  de  maintenir  pour  1'honneur 
de  notre  couronne  et  de  la  nation  Angloise." 

Wheaton's  History,  pp.  155-6. 

(k)  Bynkersboek,  De  Dominio  Maris,  cap.  iii.  pp.  365-6. 


172  PHILLIMORE    ON    INTERNATIONAL    LAW. 

the  proclamation  of  "William  III.  it  does  not  appear  that  Great  Britain 
has  ever  again  insisted  upon  any  other  limits  to  her  or  to  other  nations. 
This  right,  however,  was  alluded  to  by  Lord  Stowell  in  his  judgment 
in  The  Maria.(Z)  a  Swedish  vessel  sailing  under  convoy  of  an  armed  ship 
condemned  for  resisting  the  belligerents'  visitation  and  search :  "It  might 
likewise"  (he  observes)  be  improper  for  me  to  pass  entirely  without 
notice,  as  another  preliminary  observation  (though  without  meaning  to 
lay  any  particular  stress  upon  it),  that  the  transaction  in  question  took 
place  in  the  British,  Channel  close  upon  the  British  coast,  a  station  over 
which  the  Crown  of  England  has,  from  pretty  remote  antiquity,  always 
asserted  something  of  that  special  jurisdiction  which  the  sovereigns  of 
other  countries  have  claimed  and  exercised  over  certain  parts  of  the  seas 
adjoining  to  their  coasts." 


[*200]  *CHAPTEK     VII. 

NARROW  SEAS — STRAITS. 

CLXXXVIII.  With  respect  to  Straits  (detroits  de  mer,  Meerenge, 
freta},  where  there  is,  as  Grotius  says  in  the  passage  already  cited,  supra 
et  infra /return,  both  the  shores  of  which  belong  to  one  nation,  these 
may  be  subject  to  the  proprietary  rights  of  that  nation.  Or  if  the  shores 
belong  to  several  nations,  then,  according  to  Puffendorf,  (a)  the  dominion 

(1)  1  Rob.  Ad.  Rep.  p.  352. 

(a)  Lib.  if.  c.  v.  s.  7.  :  "  Aquandi  ergo  et  levandi  usus  nee  magni  est,  nee  nisi 
littorum  accolis  patet,  et  revera  inexhaustus  est.  Inservit  quoque  aqua  marina 
sali  excoquendo  ;  sed  quo  usu  accolae  littorum  duntaxat  gaudent.  Inexbaustum 
quoque  et  innoxiae  utilitatis  est  mare  quantum  ad  navigationem.  (Vid.  1.  xxiii.  s. 
1.  D.  de  Servit.  prsed.  rust.)  Verum  sunt  praeter  hos  alii  quoque  usus  maris,  qui 
partim  non  penitus  sunt  inexhausti ;  partim  populo  maris  accolae  occasionem  damni 
praebere  possunt,  ut  ex  re  ipsius  non  sit,  omnes  maris  partes  cuivis  promiscue  patere. 
Prioris  generis  est  piscatio,  et  collectio  rerum  in  mari  nascentium.  Piscatio  etsi 
in  mari  fere  sit  uberior,  quam  in  fluminibus  aut  lacubus :  patet  tamen  ex  parte 
earn  exbauriri  posse,  et  aceolis  maris  maligniorem  fieri,  si  omnes  promiscue  gentes 
propter  littora  alicujus  regionis  velint  piscari ;  praesertim  cum  frequenter  cerium 
piscis,  aut  rei  pretiosse  genus,  puta,  margaritoe,  corallia,  succinum,  in  uno  tantum 
maris  loco,  eoque  non  valde  spatioso  inveniantur.  Hie  nihil  obstat,  quo  minus 
felicitatem  littoris  aut  vicini  maris  ipsorum  accolae  potius,  quam  remotiores  sibi 
propriam  queant  asserere  ;  quibus  caeteri  non  magisjure  irasci  autinvidere  possunt, 
quam  quod  non  omnis  fert  omnia  tellus  ;  India  mittit  ebur,  molles  sua  thura  Sabcei. 
Ex  posteriori  genere  est,  quod  mareregionibus  maritimis  vicem  munimenti  prasbet." 
And  at  the  close  of  s.  viii.  he  observes — "  Ex  hisce  patet,  hodie  post  rem  navalem 
ad  summum  perductam  fastigium  prsesumi,  quemvis  populum  maritimum,  et  cui 
ullus  navigandi  usus,  esse  dominum  maris,  littoribus  suis  praetensi  quousque  illud 
munimenti  rationem  habere  censetur  :  imprimis  autem  portuum,  aut  ubi  alias 
commoda  in  terram  exscensio  fieri  potest.  (Bodinus  deRep.  1.  i.  c.  ult.  Baldifide 
asserit ;  jure  quodammodo  principum  omnium  maris  accolarum  communi  receptum  esse, 
ut  sexaginta  millianbus  a  littore  Painceps  legem  ad  litlus  accedentibus  dicere  posnit.) 
"  Sinus  quoque  maris  regulariter  pertinere  ad  eum  populum,  cujus  terris  iste  am- 
bitur  ;  neque  minus  freta.  Quod  si  autem  diversi  populi  fretum,  aut  sinum  acco- 
lant,  eorurn  imperia  pro  latitudine  terrarum  ad  medium  usque  ejusdem  pertinere 
intelligentur  ;  nisi  vel  per  conveutionem  indivisim  id  imperium  contra  exteros  ex- 


NARROW    SEAS — STRAITS.  173 

is  *distributed  amongst  them,  upon  the  same  principle  as  it  would  r^oA-i-i 
be  among  the  several  proprietors  of  the  banks  of  a  river:  "eorem  L 
imperia,  pro  latitudine  terrarum,  ad  medium  usque  ejusdem  pertinere 
intelligentur." 

The  exclusive  right  of  the  British  Crown  to  the  Bristol  channel,  to 
the  channel  between  Ireland  and  Great  Britain  (Mare  hibernicum,  Canal 
de  saint  George,)  and  the  channel  between  Scotland  and  Ireland  is  uncon- 
tested.  Pretty  much  in  the  same  catagory  are  the  three  straits,  forming 
the  entrance  to  the  Baltic,  the  Great  and  the  Little  Belt,  and  the  Sound, 
which  belongs  to  the  Crown  of  Denmark  ;(6)  the  straits  of  Messina  (il 
Faro  di  Messina,  /return  Siculum\  belonging  to  the  kingdom  of  the 
Two  Scicilies :  the  straits  leading  to  the  Black  Sea,  the  Dardanelles  and 
Hellespont ;  the  Thracian  Bosphorus,  belonging  to  the  Turkish  empire.(c) 
To  narrow  seas  which  flow  between  separate  portions  of  the  same  king- 
dom, like  the  Danish  aud  Turkish  straits,  or  to  other  seas  common  to  all 
nations,  like  the  straits  of  Messina,  and  perhaps  the  St.  George's  Chan- 
nel, the  doctrine  of  innocent  *use  is,  according  to  Yattel,  strictly  ..  ^  ^ 
applicable.  (cZ)  How  far  this  doctrine  is  sound  to  the  extent  to  L 
which  it  is  carried  by  this  jurist  has  been  already  considered  in  the  mat- 
ter of  Rivers. 

In  1602,  Queen  Elizabeth  sent  a  special  embassy  to  Denmark,  having 
for  its  object  the  general  adjustment  of  the  relations  between  the  two 
countries. 

ercere,  ipsos  autem  promiscue  inter  se  isto  aeqoore  uti  placuerit ;  vel  alicni  soli  in 
totum  istum  sinum,  aut  fretum  sit  dominium  quaesitum  ex  pacto,  reliquorum  con- 
cessions tacita,  jure  victorise,  aut  quia  is  prior  ad  id  mare  sedes  fixerat,  idque 
statim  totum  occupaverat,  et  contra  adversi  littoris  accolam  actus  imperil  exercue- 
rat.  Quo  casu  tamen  nihilominus  reliqui  sinus  aut  freti  accolae  suorum  quisque 
portuum,  tractusque  littoralis  domini  esse  intelligentur." — Puffendorf,  De  Jure  Nat. 
et  Gent.  1.  iv.  c.  v.  s.  8. 

(6)  Schlegel,  Staatsrecht  Danemark,  p.  359. 

(c)  Martens,  1.  ii.  c.  i.  s.  41.,  Des  Mers  adjacentes. 

Grotius,  1.  ii.  c.  iii.  s.  13.  2  :  "  Videtur  autem  imperium  in  maris  portionem  eadem 
ratione  acquiri  qua  imperia  alia,  id  est,  ut  supra  diximus,  ratione  personarum  et 
ratione  territorii.  Ratione  personarum,  ut  si  classis,  qui  maritimus  est  exercitns, 
aliquo  in  loco  maris  se  habeat :  ratione  territorii  quatenus  ex  terra,  cogi  possunt 
qui  in  proxima  maris  parte  versantur,  nee  minus  quam  si  in  ipsa  terra  reperi- 
rentur." 

Wheaton's  Hist.  pp.  577,  583,  585,  587. 

(d)  Vattel,  Des  Detroits  en  particulier,  1.  i.  c.  xxiii.  s.  292  :  "  II  faut  remarqner 
en  particulier,  &  1'egard  des  detroits,  que  quand  ils  servent  a  la  communication  de 
deux  mers  dont  la  navigation  est  commune  a  toutes  les  nations,  ou  a  plusieurs,  celle 
qui  possede  le  detroit  ne  peut  y  refuser  passage  aux  autres,  pourvu  que  ce  passage 
soit  innocent  et  sans  danger  pour  elle.     En  le  refusant  sans  juste  raison,  elle  pri- 
verait  cette  nation  d'un  advantage  qui  leur  est  accorde"  par  la  nature ;  et  encore 
un  coup,  le  droit  d'un  tel  passage  est  un  reste  de  la  communion  primitive.     Seule- 
ment  le  soin  de  sa  propre  siirete  autorise  le  maitre  du  detroit  a  user  de  certaines 
precautions,  a  exiger  des  formalites,  e"tablies  d'ordinaire  par  la  coutume  des  nations. 
II  est  encore  fonde  a  lever  un  droit  modique  sur  les  vaisseaux  qui  passent,  soit 
pour  rincominodite  qu'ils  lui  causent  en  1'obligeant  d'etre  sur  ses  gardes,  soit  pour 
la  surete"  qu'il  leur  procure  en  les  prote"geant  contre  leurs  ennemis,  en  eloignantles 
pirates,  et  en  se  chargeant  d'entretenir  des  fanaux,  des  bailises  et  autres  choses 
necessaires  au  salut  des  navigateurs.     C'est  ainsi  que  le  roi  de  Danemarck  exige 
un  peage  au  detroit  du  Sund.     Pareils   droits  doivent  etre  fondes  sur  les  memes 
raisons  et  soumis  aux  memes  regies  que  les  peages  etablis  sur  terre,  ou  sur  une 
riviere." 


174  PHILLIMORE     ON    INTERNATIONAL    LAW. 

In  the  instructions  given  to  the  ambassadors,  the  principles  of  Interna- 
tional Law,  with  respect  to  the  subjects  treated  of  in  this  Chapter,  are 
laid  down  with  the  perspicuity  and  precision  which  might  be  expected 
from  the  learning  and  ability,  both  of  the  Monarch  and  of  her  councel- 
lors  : — 

"  And  you  shall  further  declare  that  the  Lawe  of  Nations  alloweth 
of  fishing  in  the  sea  everywhere ;  as  also  of  using  ports  and  coasts  of 
princes  in  amitie  for  traffique  and  avoidinge  danger  of  tempests ;  so 
that  if  our  men  be  barred  thereof,  it  should  be  by  some  contract.  We 
acknowledge  none  of  that  nature ;  but  rather,  of  conformity  with  the 
Lawe  of  Nations  in  these  respects,  as  declaring  the  same  for  the  remov- 
ing of  all  clayme  and  doubt ;  so  that  it  is  manifest,  by  denying  of  this 
Fishing,  and  much  more,  for  spoyling  our  subjects  for  this  respect,  we 
f~*9fm  have  been  injured  *against  the  Lawe  of  Nations,  expresslie 
-I  declared  by  contract,  as  in  the  aforesaid  Treaties,  and  the  King's 
own  letters  of  '85. 

"And  for  the  asking  of  license,  if  our  predecessors  yielded  thereunto, 
it  was  more  than  by  Lawe  of  Nations  was  due ; — yielded,  perhaps,  upon 
some  special  consideration,  yet,  growing  out  of  use,  it  remained  due  by 
the  Lawe  of  Nations,  what  was  otherwise  due  before  all  contract;  where- 
fore by  omitting  license,  it  cannot  be  concluded,  in  any  case,  that  the 
right  of  Fishing,  due  by  the  Lawe  of  Nations,  faileth ;  but  rather,  that 
the  omitting  to  require  License  might  be  contrarie  to  contract,  yf  any 
such  had  been  in  force. 

"  Sometime,  in  speech,  Denmark  claymeth  propertie  in  that  Sea,  as 
lying  between  Norway  and  Island, — both  sides  in  the  dominions  of  oure 
loving  brother  the  king ;  supposing  thereby  that  for  the  propertie  of  a 
whole  sea,  it  is  sufficient  to  have  the  banks  on  both  sides,  as  in  rivers. 
Whereuntoyou  may  answere,  that  though  propertie  of  sea,  in  some  small 
distance  from  the  coast,  maie  yeild  some  oversight  and  jurisdiction,  yet 
use  not  princes  to  forbid  passage  or  fishing,  as  is  well  seen  in  our  Seas 
of  England  and  Ireland,  and  in  the  Adriaticke  Sea  of  the  Venetians, 
where  we  in  ours,  and  they  in  theirs,  have  propertie  of  command ;  and 
yet  neither  we  in  ours  nor,  they  in  theirs,  offer  to  forbid  fishing,  much 
lesse  passage  to  ships  of  merchandize;  the  which,  by  Lawe  of  Nations, 
cannot  be  forbidden  ordinarilie ;  neither  is  it  to  be  allowed  that  propertie 
of  sea  in  whatsoever  distance  is  consequent  to  the  banks,  asithapneth  in 
small  rivers.  For  then,  by  like  reason,  the  half  of  every  sea  should  be 
appropriated  to  the  next  bank,  as  it  hapoeth  in  small  rivers  where  the 
banks  are  proper  to  divers  men ;  whereby  it  would  follow  that  noe  sea 
were  common,  the  banks  on  every  side  being  in  the  propertie  of  one  or 
other ;  wherefore  there  remaineth  no  colour  that  Denmarkc  may  claim 
any  propertie,  in  those  seas,  to  forbid  passage  or  fishing  therein. 
r*904.1  *"  You  may  therefore  declare  that  we  cannot  with  our  dignitie, 
-I  yeld  that  our  subjects  be  absolutelie  forbidden  those  seas,  ports, 
or  coasts,  for  the  use  of  fishing  negotiation  and  safetie ;  neither  did  we 
ever  yeld  anie  such  right  to  Spaine  and  Portugall,  for  the  Indian  Seas 
or  Havens  ;  yet  yf  our  good  brother  the  king,  upon  speciall  reason,  maie 
desire  that  we  yeld  to  some  renuinge  of  license,  or  that  some  speciall 


NARROW     SEAS — STRAITS.  175 

place,  upon  some  speciall  occasion,  be  reserved  to  his  particular  use,  in 
your  discretion,  for  amitie  sake,  you  may  yield  thereunto ;  but  then  to 
define  the  manner  of  seking  license,  in  such  sort  as  it  be  not  pre- 
judiciall  to  our  subjects,  nor  to  the  effect  of  some  sufficient  fishing,  and 
to  be  rather  caried  in  the  subject's  name,  than  in  ours,  or  the  king's."(e) 

CLXXXIX.  The  alliances  contracted  between  the  United  Provinces 
of  the  Netherlands  with  the  city  of  Lubeek  in  1613,  with  Sweden  in 
1614  and  1640,  and  with  the  Hanseatic  towns  in  1615  and  1616, 
were  all  directed  against  the  extraordinary  pretensions  of  the  Danish 
Crown. 

But  in  more  modern  times  these  pretentious,  though  extravagant 
enough,  have  been  limited  to  the  right  of  excluding  foreigners,  not  only 
from  all  commerce  with  Iceland  and  the  Danish  portion  of  Greenland, 
but  from  fishing  within  fifteen  miles  of  the  coast  of  Iceland. 

The  first  ordinance  of  the  kind  was  put  forth  by  Denmark  on  the  16th 
of  April,  1636,  and  pointed  at  Great  Britain ;  in  1682,  it  was  renewed 
and  confirmed ;  again  on  the  30th  of  May,  1691  ;  again  on  the  3rd  of 
May,  1723 ;  and  again  on  the  1st  of  April,  1776. 

With  respect  to  Greenland,  the  first  prohibition  to  fish  appears  to 
have  been  issued  on  the  16th  of  February,  1691.  This  was  pointed 
against  the  Hanseatic  towns.  By  a  Treaty  concluded  on  the  16th  of 
August,  1692,  the  city  of  Hamburg  obtained  the  right  of  navigation 
and  fishing  in  Davis's  Straits. 

By  Koyal  Edicts  in  1751,  in  1758,  and  in  1776,  the  *com- 
merce  of  unprivileged  foreigners  with  Greenland  was  strictly 
forbidden. 

CXC.  In  these  prohibitions  there  was  no  violation  of  the  strict  law, 
however  they  might  offend  the  usual  comity  of  nations.     But  the  valid 
ity  of  the  prohibition  to  fish  within  fifteen  German  miles  of  the  shore  of 
Greenland  and  Iceland  was  strictly  denied  by  England  and  Holland,  who 
adhered  to  the  usual  limit  of  cannon-shot  from  the  shore. 

CXCI.  In  the  year  1740,  a  Danish  man-of-war  seized  upon  several 
Dutch  vessels,  alleged  to  be  found  navigating  and  fishing  within  the  for- 
bidden limits.  They  were  taken  to  Copenhagen,  tried  and  condemned  in 
the  Court  of  Admiralty  of  that  capital.  This  act  led  to  a  vehement  re- 
monstrance on  the  part  of  the  Dutch. (/) 

The  States-General,  in  a  Resolution  of  the  17th  April,  1741,  laid 
down  three  distinct  propositions,  of  which  the  substance  was, — 

1.  That  the  sea  was  freej  and  that  it  was  competent  to  every  one  to 
fish  in  it  in  a  proper  manner,  "pourvu  qu'il  nefasse  pas  d'une  maniere 
indue,"  which  they  maintained  could  not  be  predicated  of  fishing  within 
four  German  miles  of  the  coast,  inasmuch  as  Denmark  might  mak*e  such 
a  Municipal  prohibition  binding  on  her  own  subjects,  but  could  not  con- 
vert it  into  an  International  obligation. 

2.  That  this  right  was  fortified,  in  the  case  of  Holland,  by  several 
Treaties  with  Denmark. 

(e)  Rymer,  Feed.  t.  xvi.  pp.  433-4. 
(/)  Martens,  Caus.  Celebr.  t.  i.  p.  359. 


176  PHILLIMORE    ON    INTERNATIONAL    LAW. 

8.  That  they  were  in  possession,  and  had  long  been  so,  of  the  right  in 
question. 

The  Banish  Government  denied  all  these  positions,  with  reference  to 
the  particular  sea. 

1.  "  Les  rois  de  Danemark,"  they  said  "Norvege,  &c.,  ont  joui  depuis 
un  temps  immemorial  des  pleins  effets  d'une  juste  possession  dans  la  mer 
du  Nord.(^)     That,  possessing  this  "domination  juste  et  immemorial ," 
r*90P~l  *hev  were,  *°n  the  authority  of  Grotius,  entitled  to  the  exclusive 

J  fishery. (A)     , 

2.  They  went  at  length  into  the  alleged  Treaties,  and  drew  from  them 
a  contrary  inference. 

3.  They  denied  the  possession  of  the  right  by  the  Dutch;  alleging 
that  clandestine  acts,  punished  as  soon  as  discovered,  could  not  be  con- 
strued as  possession ;  and  that  none  others  could  be  shown. 

The  dispute  came  to  no  legal  termination.  The  crews  of  the  seized 
ships  were  given  up,  but  neither  the  ships  nor  their  cargoes.  In  1748 
the  Dutch  sent  ships  of  war  to  protect  their  merchantmen.  Denmark 
threatened  to  make  war,  but  did  not. 

CXCII.  In  1776  the  strict  provisions  of  the  Danish  Government,  for 
prohibiting  all  foreign  nations  from  carrying  on  any  commerce  with 
Greenland,  gave  rise  to  disputes  between  Denmark  and  Great  Britain, 
and  between  Denmark  and  Holland,  with  respect  to  the  seizure  of  an 
English  brigandine  and  two  Dutch  vessels  for  alleged  violation  of  these 
provisions,  and  their  condemnation  in  the  Danish  Court  of  Admiralty. 
In  both  cases  the  vessels  were,  at  the  application  of  their  respective 
Governments,  restored;  but  all  claims  for  compensation  by  way  of  dam- 
age were  steadily  refused,  as  it  was  said  that  the  vessels  had  been  legally 
condemned  by  a  proper  tribunal. (t)  The  Dutch  on  this  occasion  pro- 
l~*2071  teste<^  *agaiQsfc  tne  Danish  pretensions  with  respect  to  Davis's 
-I  Straits  and  the  Greenland  fisheries. (&) 

(g)  Ibid.  t.  i.  p.  392.  (h)  Martens,  Caus.  Ce"lebr.  t.  i.  pp.  393-4. 

(i)  Extract  from  letter  of  Danish  Government  to  the  British  Minister  at  Copen- 
hagen : — 

"  Re'ponse  du  Comte  de  Bernstorff  a  la  note  pre"ce"dente,  du  10  Octobre,  1776." — 
"  On  a  1'honneur  de  re"pondre  a  la  note  remise  par  M.  de  Laval  en  date  du  7  Octo- 
bre, 1776,  que  la  demande  du  de"dommagement  du  S.  Kidder,  menant  le  vaisseau 
le  Windsor,  pouvait  avoir  lieu,  tant  qu'il  e"tait  douteux  si  sa  saisie  e"tait  le"gale,  ou 
si  elle  ne  1'fitait  pas  ;  mais  qu'elle  n'est  plus  admissible  selon  la  nature  de  la  chose 
et  les  usages  ge'ne'ralement  regus  de  toutes  les  puissances  de  1'Europe,  des  qu'une 
sentence  a  e"te"  prononce'e  par  un  tribunal  competent  a  decider  ce  point,  et  des  qu'un 
vaisseau  a  6te"  le"galement  condamne"  et  declare'  confiscable  avec  sa  cargaison.  S. 
M.  est  sure  d'avoir  donne"  la  preuve  la  moins  Equivoque  et  la  moins  ordinaire  de 
son  amitie  pour  S.  M.  Britannique,  en  arretant  1'execution  et  1'effet  d'un  arrSt 
donne"  en  faveur  de  la  compagnie  de  Groenlande." — Martens  Caus.  Celebr.  t.  ii. 
pp.  131-2. 

(7c)  Extract  from  the  Dutch  Minister  at  Copenhagen  to  Danish  Government: — 

"  Mais  comme  veritablement  cette  affaire  est  d'une  importance  generale  pour 
toutes  les  puissances  int£resse"es  dans  la  peche  de  Groenlande  et  du  d^troit  de  Davis, 
LL.  HH.  PP.  se  verraient  obligees  d'en  faire  une  cause  commune  avec  ses  puis- 
sances, et  de  deTendre  et  prote"ger  le  droit  indisputable  de  toutes  les  nations  de 
pouvoir  naviguer  et  pecher  librement  par  toutes  les  mers  ouvertes,  les  de"troits,  et 
les  payes,  et  en  particulier  celui  de  leurs  sujets,  qui  de  temps  immemorial  ont  6t6 


NARROW    SEAS STRAITS.  177 

CXCIII.  G-reat  Britain  has  never  been  remiss  in  maintaining  the 
rights  of  her  fisheries.  The  Newfoundland  fisheries  were  the  subject  of 
careful  provisions  in  the  Treaties  of  Utrecht  and  Paris,  1763  ;(?)  and 
were  in  1818  regulated  by  a  Convention  between  Great  Britain  and  the 
United  States  of  North  America. (m) 

CXCIV.  The  language  of  the  Article  of  the  Convention  was,  that 
"  "Whereas  differences  have  arisen  respecting  the  liberty  claimed  by  the 
United  States,  for  the  inhabitants  thereof  to  take,  dry,  and  cure  fish  on 
certain  coasts,  bays,  harbours,  and  creeks  of  his  Britannic  Majesty's 
dominions  in  America,  it  is  agreed  between  the  high  contracting  parties, 
that  the  inhabitants  of  the  said  United  States  shall  *have  for  r^nno-t 
ever,  in  common  with  the  subjects  of  his  Britannic  Majesty,  the  L 
liberty  to  take  fish  of  every  kind  on  that  part  of  the  southern  coast  of 
Newfoundland  which  extends  from  Cape  Ray  to  the  Ramean  Islands,  on 
the  Western  and  Northern  Coasts  of  the  said  Newfoundland,  from  the 
said  Cape  Ray  to  the  Quirpon  Islands,  on  the  shores  of  the  Magdalen 
Islands,  and  also  on  the  coasts,  bays,  harbours,  and  creeks,  from  Mount 
Joly,  on  the  southern  coast  of  the  Labrador,  to  and  through  the  Straits 
of  Belle  Isle,  and  thence  northwardly  indefinitely  along  the  coast,  without 
prejudice,  however,  to  any  of  the  exclusive  rights  of  the  Hudson's  Bay 
Company ;  and  that  the  American  fishermen  shall  also  have  liberty  for 
ever  to  dry  and  cure  fish  in  any  of  the  unsettled  bays,  harbours,  and 
creeks  of  the  southers  part  of  the  Coast  of  Newfoundland,  here  above 
described,  and  off  the  Coast  of  Labrador ;  but  so  soon  as  the  same,  or 
any  portion  thereof,  shall  be  settled,  it  shall  not  be  lawful  for  the  said 
fishermen  to  dry  or  cure  fish  at  such  portion  so  settled,  without  previous 
agreement  for  such  purpose  with  the  inhabitants,  proprietors,  or  posses- 
sors of  the  ground. 

"  And  the  United  States  hereby  renounce  for  ever  any  liberty  hereto- 
fore enjoyed  or  claimed  by  the  inhabitants  thereof  to  take,  dry,  or  cure 
fish  on  or  within  three  marine  miles  of  any  of  the  coasts,  bays,  creeks, 
or  harbours  of  his  Britannic  Majesty's  dominions  in  America  not  included 
within  the  above-mentioned  limits.  Provided,  however,  that  the  Ameri- 
can fishermen  shall  be  admitted  to  enter  such  bays  or  harbours  for  the 
purpose  of  shelter  and  of  repairing  damages  therein,  of  purchasing  wood, 
and  of  obtaining  water,  and  for  no  other  purpose  whatever.  But  they 
shall  be  under  such  restrictions  as  may  be  necessary  to  prevent  their 

en  possession  d'usur  de  ce  droit  sur  les  c6tes  de  Groenlande,  dans  le  detroit  de  Davis, 
et  nomme'ment  aussi  dans  la  paye  de  Disco." — Ibid.  pp.  139-40. 

See,  too,  disputes  between  England,  Denmark,  and  Holland,  1776  ;  as  to  the 
Iceland  fisheries,  1790,  between  Denmark  and  Holland,  ib.  t.  i. ;  as  to  Finland, 
Heffters,  140,  n.  3;  Ortolan,  Dipl.  de  la  Mer,  i.  176;  as  to  the  Zuyder  Dee,  The 
Twee  Gebroeders  (Lord  Stowell),  3  Robinson's  Adm.  Rep.  p.  339. 

(I)  Koch,  Hist,  des  Tr.  i.  209,  362. 

Art.  13  of  the  Treaty  of  Utrecht. 

Art.  5  of  the  Treaty  of  Paris. 

(m)  The  line  of  demarcation  between  the  rights  of  fishing  of  English  and  French 
subjects  in  the  British  Channel  was  elaborately  defined  by  the  recent  Treaty  of  2d 
August,  1839.— De  Martens  et  de  C.  iv.  601. 

De  Martens  et  de  C.  iii.  391. 


178  PHILLIMORE    ON    INTERNATIONAL    LAW. 

taking,  drying,  or  curing  fish  therein,  or  in  any  other  manner  whatever 
abusing  the  privileges  hereby  reserved  them."(») 

r*90Ql  *CXCV.  It  appears  that  these  provisions  had  not  been  strictly 
-I  observed  by  the  subjects  of  the  United  States,  and  that  in  1849 
complaints  were  made  by  the  Canadian  colonists  to  the  British  Crown, 
who  took  the  opinion  of  the  Law  officers  as  to  the  true  construction  of 
the  Article.  This  opinion  was,  that,  "by  the  terms  of  the  convention, 
American  citizens  were  excluded  from  any  right  of  fishing  within  three 
miles  from  the  coast  of  British  America,  and  that  the  prescribed  distance 
of  three  miles  is  to  be  measured  from  the  headlands,  or  extreme  points 
of  land,  next  the  sea  or  the  coast,  or  of  the  entrance  of  bays  or  indents 
of  the  coast,  and  that  consequently  no  right  exists  on  the  part  of  Ameri- 
can citizens  to  enter  the  bays  of  Nova  Scotia,  there  to  take  fish,  although 
the  fishing,  being  within  the  bay,  may  be  at  a  greater  distance  than  three 
miles  from  the  shore  of  the  bay,  as  we  are  of  opinion  that  the  term 
'headland'  is  used  in  the  Treaty  to  express  the  part  of  the  land  we  have 
before  mentioned,  including  the  interior  of  the  bays  and  the  indents  of 
the  coasts."  (o) 

The  neglect  of  these  provisions  by  the  subjects  of  the  United  States 
still  continued,  and  in  1852,  British  men-of-war  were  sent  to  protect  the 
fisheries  and  seize  the  boats  which  violated  the  Treaty.  This  act  of  the 
British  Government  created  a  great  excitement  in  the  United  States, 
though  it  does  not  appear  that  the  legality  of  the  construction  of  the 
Article  was  impugned;  but  the  late  Mr.  Webster  insisted  on  the  incon- 
venience to  the  subjects  of  the  United  States,  and  in  the  want  of  comity 
shown  in  its  sudden  enforcement  after  many  years  of  an  opposite  prac- 
tice.^) The  subject  is  still  under  discussion  between  the  Governments 
of  the  two  countries. 


[*210]  *CH AFTER    VIII. 

PORTIONS   OF   THE   SEA. 

CXCVI.  Though  the  open  sea  be  thus  incapable  of  being  subject  to 
the  rights  of  property,  or  jurisdiction,  yet  reason,  practice,  and  authority 
have  firmly  settled  that  a  different  rule  is  applicable  to  certain  portions 
of  the  sea.  (a) 

CXCVII.  And  first  with  respect  to  that  portion  of  the  sea  which 

(n)  Annual  Reg.  vol.  xciv.  (1852)  pp.  295-6. 
(o)  Annual  Reg.  vol.  zciv.  (1852)  pp.  296-7. 
(p)  Ib.  for  1852,  vol.  xciv.  pp.  295—300. 
Morning  Chronicle  and  Daily  News,  August  9 — 10,  1852. 

(a]  Gunther,  t.  ii.  s.  xxviii.  p.  48 :  "  Eigenthum  und  Herrschaft  des  Meeres  an 
den  Kiisten." 

Heffters,  1  Buch,  s.  Ixxvi.  p.  141  :  "  Schutzrechte  iiber  die  Kiistengewasser." 
Ortolan,  Dipl.  de  la  Mer,  t.  i.  1.  ii.  c.  viii. :  "  Mer  Territoriale." 
Kent's  Commentaries,  vol.  i.  s.  xxvi.  p.  25. 


PORTIONS    OF    THE    SEA.  179 

washes  the  coast  of  an  independent  state.  Various  claims  have  been 
made,  and  various  opinions  pronounced,  at  different  epochs  of  history, 
as  to  the  extent  to  which  territorial  property  and  jurisdiction  may  be 
extended.  But  the  rule  of  law  may  be  now  considered  as  fairly  esta- 
blished : — namely,  that  this  absolute  property  and  jurisdiction  does  not 
extend,  unless  by  the  specific  provisions  of  a  Treaty(6)  or  an  unquestioned 
usage,  beyond  a  marine  league  (being  three  miles),  or  the  distance  of  a 
cannon-shot  from  the  shore  at  low  tide  : — "quousque  e  terra  imperari 
potest" — "quousque  tormenta  exploduntur," — "terrse  dominium  finitur 
ubi  finitur  armorum  vis," — is  the  language  of  Bynkershoek.(c)  "In 
the  sea,  out  of  the  reach  of  cannon-shot,"  (says  Lord  Stowell,)  "universal 
use  is  presumed."  This  is  the  limit  *fixed  to  absolute  property  r#oii-i 
and  jurisdiction;  but  the  rights  of  Independence^)  and  self-pre-  L 
servation  in  time  of  peace,  justify  a  nation  in  preventing  her  revenue 
laws  from  being  evaded  by  foreigners  beyond  this  exact  limit;  and  both 
Great  Britain  and  the  United  States  of  North  America  have  provided 
against  frauds  being  practised  on  their  revenues,  by  prohibiting  foreign 
goods  to  be  transhipped  within  the  distance  of  four  leagues  of  the  coast, 
and  exercising  a  jurisdiction  for  this  purpose  in  time  of  peace :  and  in 
time  of  war  by  preventing,  within  a  similar  distance,  the  hovering(e)  of 
*foreign  belligerent  ships  so  near  the  neutral  coasts  as  to  menace 
and  alarm  vessels  homeward  or  outward  bound. 


(b)  Valin,  Ordonnance  de  la  Marine,  1.  v.  tit.  i.  p.  687,  De  la  Liberte  de  la  Pe'che, 
contains  a  full  dissertation  on  this  subject. 

Kliiber,  a.  130,  n.  a. 

(c)  Quaestiones  Juris  Publici,  cap.  viii. 

(d)  The  Louis,  2  Dodson's  Adm.  Rep.  245. 
The  Twee  Gebroeders,  3  Rob.  Adm.  Rep.  339. 
Jacobsen,  Seerecht,  586 — 590. 

"  Si  quelque  vaisseau  de  1'une  ou  de  1'autre  partie  est  en  engagement  avec  un 
vaisseau  appartenant  a  quelqu'une  des  puissances  chre"tiennes  a  la  portee  du  canon 
des  chateaux  de  1'autre,  le  vaisseau  qui  se  trouvera  ainsi  en  action  sera  defendu 
et  protege"  autant  que  possible,  jusqu'a  ce  qu'il  soiten  surete." — Etats-unis  et  Maroc 
(1787),  Art.  10. — De  Martens  et  de  Cussy,  Rec.  de  Traite"s,  &c.,  vol.  i.  p.  380. 

"  En  consequence  de  ces  principes,  les  hautes  parties  contractantes  s'engagent 
re"ciproquement,  en  cas  que  1'une  d'entre  elles  fut  en  guerre  centre  quelque  puis- 
sance que  ce  soit,  de  n'attaquer  jamais  les  vaisseaux  de  ses  enhemis  que  hors  de  la 
portee  du  canon  des  cotes  de  son  allie." — France  et  Russie,  Art.  27,  ibid.  p.  395.  (This 
treaty  was  only  entered  into  for  12  years.) 

"  Aucune  des  deux  parties  ne  souffrira  que  le  vaisseau  ou  effets  appartenants  aux 
sujets  ou  citoyens  de  1'autre,  soient  pris  a  tine  portee  de  canon  de  la  cote,  ni  dans  aucune 
des  baies,  rivieres  ou  ports  de  leurs  territoires,  par  des  vaisseaux  de  guerre  ou 
autres,  ayant  lettres  de  marque  de  prince,  re"publique  ou  e"tat,  quels  qu'ils  puissent 
Stre.  Mais  dans  le  cas  ou  cela  arriverait,  la  partie  dont  les  droits  territoriaux  au- 
raient  e"te"  ainsi  violes,  fera  tous  les  efforts  dont  elle  est  capable  pour  obtenir  de 
1'offenseur  pleine  et  entiere  satisfaction,  pour  le  vaisseau  ou  les  vaisseaux  ainsi  pris, 
soit  que  ce  soient  des  vaisseaux  de  guerre  ou  des  navires  marchands." — Etats-Unis 
d'Ame'rique  et  Grande  Bretagne,  Art.  25. — De  Martens  et  De  Cussy,  Rec.  de  Traites, 
vol.  ii.  p.  92. 

(e)  9  Geo.  III.  c.  35,  prohibited  foreign  goods  from  being  transhipped  within  four 
leagues  of  the  coast  without  payment  of  duties.     The  American  Act  of  Congress, 
1799,  March  2,  ss.  25,  26,  27,  99,  contains  the  same  prohibition,  and  their  Supreme 
Court  has  declared  this  regulation  to  be  founded  upon  International  Law. — Church 
v.  Hubbards,  2  Cranch's  (American)  Reports,  p.  187. — The  Le  Louis,  2  Dodson's 
Adm.  Rep.  245-6. 


180  PHILLIMORE    ON    INTERNATIONAL    LAW. 

CXCVIII.  The  rule  of  the  marine  league  being  the  boundary  of  the 
territorial  jurisdiction  is  of  course  liable  to  be  affected  by  Treaty.  The 
Emperor  of  China  has  conceded  jurisdiction  to  the  Crown  of  England 
over  British  subjects  in  China,  and  the  Crown,  by  an  order  in  Council 
assented  to  by  the  Chinese  Government,  has  jurisdiction  over  British 
subjects  "being  within  the  diminions  of  the  Emperor  of  China,  or  being 
within  any  ship  or  vessel  at  a  distance  of  not  more  than  one  hundred 
miles  from  the  coast  of  China. (/) 

CXCIX.  Besides  the  rights  of  property  and  jurisdiction  within  thef 
limit  of  cannon-shot  from  the  shore,  there  are  certain  portions  of  the  sea 
which,  though  they  exceed  this  verge,  may,  under  special  circumstances, 
be  prescribed  for.  Maritime  territorial  rights  extend,  as  a  general  rule, 
over  arms  of  the  sea,  bays,  gulfs,  estuaries  which  are  inclosed,  but  not 
entirely  surrounded  by  lands  belonging  to  one  and  the  same  state.  With 
respect  to  bays  and  gulfs  so  inclosed,  there  seems  to  be  no  reason  or  au- 
thority for  a  limitation  suggested  by  Martens,(#)  "surtout  en  tant  que 
ceux-ci  ne  passent  pas  la  largeur  ordinaire  des  rivieres,  ou  la  double 
portee  du  canon," — or  for  the  limitation  of  Grotius(/t)  which  is  of  the 
vaguest  character, — "mare  occupari  potuisse  ab  eo  qui  terras  ad  latus 
utrumque  possideat,  etiamsi  aut  supra  pateat  ut  sinus,  aut  supra  et  infra 
ut  fretum,  duinmodo  non  ita  magna  sit  pars  maris  ut  non  cum  terris  com- 
parata  portio  earum  videri  possit."  The  real  question,  as  Giinther  truly 
remarks,  is,  whether  it  be  within  the  physical  competence  of  the  nation, 
possessing  the  circumjacent  lands,  to  exclude  other  nations  from  the 
whole  portion  of  the  sea  so  surrounded :  or,  as  Martens  declares  in  his 
r*91 31  ear^es^>  and  in  *some  respects  best,  treatise  on  International  Law, 
-"  "Partes  maris  territorio  ita  natura  vel  arte  inclusoe  ut  exteri 
aditu  impediri  possint,  gentis  ejus  sunt,  cujus  est  territorium  circum- 
jacens."^')  To  the  same  effect  is  the  language  of  Vattel:  "Tout  ce  que 
nous  avons  dit  des  parties  de  la  mer  voisines  des  cotes,  se  dit  plus  par- 
ticulierement  et  a  plus  forte  raison  des  rades,  des  baies  et  des  detroits, 
comme  pluscapables  encore  d'etre  occupes,  et  plus  importauts  a  lasurete 
du  pays.  Mais  je  parle  des  baies  et  detroits  de  peu  d'etendue,  et  non  de 
ces  grands  espaces  de  mer  auxquels  on  donne  quelquefois  ces  noms,  tels 
que  la  baie  de  Hudson,  le  detroit  de  Magellan,  sur  lesquels  1'empire  ne 
saurait  s'etendre,  et  moins  encore  la  propriete.  Une  baie  dont  on  peut 
defendre  1'entree,  peut  etre  occupee  et  soumise  aux  lois  du  souverain;  il 
importe  qu'elle  le  soit,  puisque  le  pays  pourrait  etre  beaucoup  plus  aiss- 
ment  insulte  en  cet  endroit  que  sur  des  cotes  ouvertes  aux  vents  et  a 
1'impetuosite  des  flots."(&) 

Thus  Great  Britain  has  immemorially  claimed  and  exercised  exclusive 
property  and  jurisdiction  over  the  bays  or  portions  of  sea  cut  off  by  lines 
drawn  from  one  promontory  to  another,  and  called  the  King's  Chambers. 
And  there  is  the  high  authority  of  Sir  Leoline  Jenkins,  (Z)  that  the 

(/)  Papers  presented  to  both  Houses  of  Parliament  by  command  of  Her  Majesty, 
1853.  (g)  Lib.  ii.  c.  i.  s.  40.  (A)  Lib.  ii.  c.  iii.  s.  8. 

(i)  Primse  Linae  Juris  Gentium,  1.  iv.  c.  iv.  s.  110. 
(k)  Yattel,  Le  Proit,  &c.,  t.  i.  1.  i.  c.  xxiii.  s.  291. 
(I)  Life  of  Sir  Leoline  Jenkins,  vol.  ii.  pp.  727,  732,  755,  780. 


SEA    NEAR    THE    COAST.  181 

vessels,  even  of  the  enemies  of  Great  Britain,  captured  by  foreign  cruisers 
within  these  Chambers,  would  be  restored  by  the  High  Court  of  Admi- 
ralty. Nor  can  there  be  any  doubt  that  the  portion  of  the  sea  which 
flows  between  the  Isle  of  Wight  and  the  main  land  belongs  as  completely 
as  the  soil  of  the  adjacent  shores  to  Great  Britain.  The  revenue  laws 
of  the  United  States  of  America  contain  similar  provisions. 

CC.  Mr.  Chancellor  Kent  states   the  claims  of    the  United   States 
upon  this  matter  in  the  following  language : — 

"  Considering  the  great  extent  of  the  line  of  the  American  coasts,  we 
*have  a  right  to  claim,  for  fiscal  and  defensive  regulations,  a  r^o-i  j-i 
liberal  extension  of  maritime  jurisdiction  ;  and  it  would  not  be  *• 
unreasonable,  as  I  apprehend,  to  assume,  for  domestic  purposes  connected 
with  our  safety  and   welfare,  the  control  of  the  waters  on  our  coasts, 
though   included  within   lines  stretching  from  quite  distant  headlands, 
as,   for  instance,  from  Cape  Ann  to  Cape  Cod,  and  from  Nantucket  to 
Montauck  Point,  and  from  that  point  to  the  Capes  of  the  Delaware,  and 
from  the  South  Cape  of  Florida  to  the  Mississippi.     It  is  certain  that 
our  Government  would  be  disposed  to  view  with  some  uneasiness  and 
sensibility,  in  the  case  of  war  between  other  maritime  powers,  the  use  of 
the  waters  of  our  coast,  far  beyond  the  reach  of  cannon-shot,  as  cruising 
ground  for  belligerent  purposes.     In  1793  our  Government  thought  they 
were  entitled,  in  reason,  to  as  broad  a  margin  of  protected  navigation  as 
any  nation  whatever,  though  at  that  time  they  did  not  positively  insist 
beyond   the   distance  of  a  marine  league  from  the  seashores;  and,  in 
180&,  our  Government  though  it  would  not  be  unreasonable,  considering 
the  extent  of  the  United  States,  the  shoalness  of  their  coast,  and  the 
natural  indication  furnished  by  the  well-defined  path  of  the  Gulf  Stream, 
to  expect  an  immunity  from  belligerent  warfare,   for  the  space  between 
the  limit  and  the  American  shore.     It  ought,  at  least,  to  be  insisted, 
that  the  extent  of  the  neutral  immunity  should  correspond  with  the 
claims  maintained  by  Great  Britain  around  her  own  territory,  and  that 
no  belligerent  right  should  be  exercised  within  <  the  chambers  formed 
by  headlands,  or  anywhere  at  sea  within  the  distance  of  four  leagues,  or 
from  a  right  line  from  one  headland  to  another.'     In  the  case  of  the 
Little  Belt,  which  was  cruising  many  miles  from  the  shore  between  Cape 
Henry  and  Cape   Hatteras,    our  Government  laid  stress  on  the  circum- 
stance that  she  was  'hovering  on  our  coasts;'  and  it  was  contended  on 
the  part  of  the  United  States,  that  they  had  a  right  to  know  the  national 
character  of  armed  ships  in  such   a  situation,  and  that  it  was  a  right 
Immediately  connected  with  our  tranquillity  and  peace.     It  was  r,o1  -.. 
further  observed,  that  all  nations  exercised  the  right,  and  none  L        J 
with  more  rigour,  or  at  a  greater  distance  from   the  coast,  than  Great 
Britain,  and  none  on  more  justifiable  grounds  than  the  United  States. 
There  can  be  but  little  doubt  that,  as  the  United  States  advance  in  com- 
merce and  naval  strength,   our  Government  will  be  disposed  more  and 
more  to  feel  and  acknowledge  the  justice  and  policy  of  the  British  claim 
to  supremacy  over  the  narrow  seas  adjacent  to  the  British  Isles,  because 
we  shall  stand  in  need  of  similar  accommodation  and  means  of  security."(?w) 

(m)  Commentaries,  vol.  i.  pp.  29,  30. 


182  PHILLIMORE    ON    INTERNATIONAL    LAW. 

CGI.  In  1822  Russia  laid  claim  to  a  sovereignty  over  the  Pacific 
Ocean  north  of  the  51st  degree  of  latitude  ;  but  the  Government  of  the 
United  States  of  America  resisted  this  claim  as  contrary  to  the  principles 
of  International  Law.(n-) 

CCII.  The  portion  of  sea  actually  occupied  by  a  fleet  riding  at  anchor 
is  within  the  dominion  of  the  nation  to  which  the  fleet  belongs,  so  long 
as  it  remains  there;  that  is,  for  all  purposes  of  jurisdiction  over  persons 
within  the  limits  of  the  space  so  occupied.  The  like  principle  is  appli- 
cable to  the  portion  of  territory  occupied  by  an  army,  —  a  fleet  being 
considered  as  a  maritime  army.(o) 

r*21fn  *This  proposition  is  of  course  not  to  be  considered  without 
-•  reference  to  the  place  of  anchorage  :  a  French  fleet  permitted  to 
anchor  in  the  Downs,  or  an  English  fleet  at  Cherbourg,  would  only  have 
jurisdiction  over  the  subjects  of  the  respective  countries  which  happened 
to  be  within  the  limits  of  their  temporary  occupation  of  the  water.  Both 
in  the  case  of  the  fleet  and  the  army,  there  is,  according  to  the  theory  of 
the  law,  a  continuation  or  prorogation  of  the  territory  to  which  they 


CCIII.  The  undoubted  proposition,  that  the  sea  is  open  to  the  navi- 
gation of  all  nations,  does  not  carry  with  it  the  further  proposition,  that 
it  is  competent  to  every  individual  to  navigate  his  ship  without  any 
authority  from  his  government. 

Every  ship  is  bound  to  carry  a  flag,  and  to  have  on  board  ship's  papers 
(lettres  de  mer)  indicating  to  what  nation  they  belong,  whence  they  have 
sailed,  and  whither  they  are  bound,  under  pain  of  being  treated  as  a 
pirate,  (g) 

CCIV.  With  respect  to  seas  entirely  inclosed  by  the  land,  so  as  to 
constitute  a  salt  water-lake  (Maria  clausa  ;  mers  fermees,  endosees  ; 
JBinnenmeere,  geschlossene  innere  Meere,\  the  general  presumption  of  law 
is,  that  they  belong  to  the  surrounding  territory  or  territories  in  as  full 

(n)  Commentaries,  vol.  i.  p.  28. 

Mr.  Adams'  Letter  to  the  Russian  Minister,  March  30th,  1822. 

(o)  "  Videtur  autem  imperium  in  maris  portionem  eadem  ratione  aequiri  ut  im- 
peria  alia,  id  est,  ut  supra  diximus,  ratione  personarum  et  ratione  imperii.  Ra- 
tione personarum,  ut  si  classis  qui  est  maritimus  exercitus,  aliquo  in  loco  maris  se 
habeat:  ratione  territorii,  quatenus  ex  terra  cogi  possunt  qui  in  proximamar  is 
parte  versantur,  nee  minus  quam  si  in  ipsa  terra  reperentur."  —  Grotius,  1.  ii.  c.  3, 
xiii.  2. 

"Addo,  classem  quae  stat  in  anchoris,  earn  maris  partem  cui  incubat,  videri 
occupasse,  eatenus  nempe,  quatenus  et  quamdiu  occupat.  Si  occupaverit  transit 
in  imperium  et  dominium  occupantis  secundum  ea  quae  disputavi."  —  Cap.  iii.  s.  4. 
Bynk.  De  Dominio  Maris. 

Heffters,  136. 

Wheaton's  Hist.  723. 

(p)  Vide  post,  further  observations  on  the  question  of  jurisdiction. 

(<?)  "Quand  on  dit  que  la  mer  est  libre,  on  ne  s'entend  parler  que  des  nations, 
car  elle  ne  1'est  point  pour  des  particuliers  ;  ils  ne  peuvent  en  jouir  que  sous  la 
sauvegarde  de  leur  Gouvernement,  et  c'est  pour  etablir  cette  sauvegarde  qu'on  a 
institu6  les  pavilions  et  les  lettres  de  mer  ;  la  surete"  a  exige"  cette  restriction  du 
droit  naturel  ;  et  tout  batiment  naviguant  sans  pavilion  et  sans  lettres  de  mer  est 
traite"  comine  miforban."  —  Garden  Traite"  de  Diplomatie,  i.  406. 

Ortolan,  Dipl.  de  la  Mer,  t.  i.  1.  ii.  c.  ix.  —  The  Le  Louis,  2  Dodson's  Adm.  Rep. 
246-7. 


ISTHMUS    OF    CENTRAL    AMERICA.  183 

and  complete  a  manner  as  a  fresh-water  lake.  The  Caspian  and  the 
Black  Sea  naturally  belong  to  this  class.  Upon  the  former  sea  Russia 
had,  by  the  Treaty  with  Persia,  the  exclusive  right  of  navigating  with 
ships  of  war;  and  by  the  Treaty  of  the  *Dardanelles,  the  Black 
Sea  is  practically  confined  to  Russian  and  Turkish  ships  of  war.M 

CCY.  There  is  another  class  of  inclosed  seas  to  which  the  same  rules 
of  law  are  applicable ;  seas  which  are  land-locked,  though  not  entirely 
surrounded  by  land.  Of  these,  that  great  inlet  which  washes  the  coasts 
of  Denmark,  Sweden,  Russia,  and  Prussia,  the  Ostsee,  as  the  Germans 
call  it,  the  Baltic  Sea,  according  to  its  usual  appellation,  is  the  princi- 
pal.^) 


*CHAPTER  IX.  [*218] 

PECULIAR   CASE   OF   THE   ISTHMUS   OF   CENTRAL   AMERICA. 

CCVI.  The  most  remarkable,  and  perhaps  the  most  important,  in- 
stance of  the  establishment  of  the  jus  transitus  innoxii  is  afforded  by  the 
recent  convention  between  Great  Britain  and  the  United  States  respect- 
ing the  Isthmus  of  Central  America,  which  connects  the  great  highways 
of  the  world,  the  Atlantic  and  Pacific  Oceans.  The  treaty  concerns  the 
formation  of  a  ship-canal,  or  of  a  railway  over  this  strip  of  land.  This 
Treaty,  both  on  account  of  its  -immediate  object,  and  the  principle  which 
it  expressly  recognizes  and  recites,  is  of  such  vast  importance,  both  to 
the  present  and  future  interests  of  mankind,  that  it  is  necessary  to  state 
the  provisions  in  extenso. 

The  preamble  set  forth  that,  "Her  Britannic  Majesty  and  the  United 
States  of  America  being  desirous  of  consolidating  the  relations  of  amity 
which  so  happily  subsist  between  them,  by  setting  forth  and  fixing  in  a 
convention  their  views  and  intentions  with  reference  to  any  means  of 
communication  by  ship-canal,  which  may  be  constructed  between  the 
Atlantic  and  Pacific  Oceans  by  way  of  the  river  St.  Juan  de  Nicaragua, 

(r)  2  De  Martens  et  De  Cussy,  399,  Art.  5. 

Heffters,  140. 

Wheaton's  Hist.  158,  56T. 

(»)  Heffters,  143,  n.  2. 

4  De  Martens  et  De  C.  t.  i.  Index  Explicatif. 

"  Hers  fermees.     Parmi  les  mers  fermees  on  compte  ge"neralement : 

Le  grand  et  le  petit  Belt. 

Le  Sund  (le  seul  detroit  dont  le  passage  soit  soumis,  pour  les  navires  de  la 
marine  commerciale,  &  un  peage:  Voir  Sund.) 

Le  Canal  de  Bristol. 

Le  Canal  de  Saint  George. 

Le  Detroit  d'Ecosse. 

Le  Detroit  de  Messine. 

Les  Dardenelles. 

La  Mer  de  Marmora. 

Le  Bosphore,  etc.  etc. 

En  1780,  le  Danemarck  declara  la  mer  Baltique  une  mer  fermte,  a  1'abri  des 
courses  des  armateurs  et  des  vaisseaux  armes." 


184  PHILLIMORE     ON    INTERNATIONAL    LAW. 

and  either  or  both  of  the  lakes  of  Nicaragua  or  Managua,  to  any  port  or 
place  on  the  Pacific  Ocean,"  &c. 

The  Articles  were  as  follows  : — "  Art.  1.  The  Governments  of  Great 
Britain  and  the  United  States  hereby  declare  that  neither  the  one  nor 
the  other  will  ever  obtain  or  maintain  for  itself  any  exclusive  control 
over  the  said  ship-canal;  agreeing  that  neither  will  ever  erect  or  main- 
tain any  fortifications  commanding  the  same,  or  in  the  vicinity  thereof, 
r*91Q1  *or  occupy,  or  fortify,  or  colonise,  or  assume  or  exercise  any  do- 
J  minion  over  Nicaragua,  Costa  Kica,  the  Mosquito  Coast,  or  any 
part  of  Central  America  ;(a)  nor  will  either  make  use  of  any  protection 
which  either  affords  or  may  afford,  or  any  alliance  which  either  has  or 
may  have,  to  or  with  any  State  or  people,  for  the  purpose  of  erecting  or 
maintaining  any  such  fortifications,  or  of  occupying,  fortifying,  or  colo- 
nising Nicaragua,  Costa  Rica,  the  Mosquito  Coast,  or  any  part  of  Cen- 
tral America,  or  of  assuming  or  exercising  dominion  over  the  same.  Nor 
will  Great  Britain  or  the  United  States  take  advantage  of  any  intimacy, 
or  use  any  alliance,  connection,  or  influence  that  either  may  possess  with 
any  State  or  Government  through  whose  territory  the  said  canal  may 
pass,  for  the  purpose  of  acquiring  or  holding,  directly  or  indirectly,  for 
the  subjects  or  citizens  of  the  one,  any  rights  or  advantages,  in  regard  to 
commerce  or  navigation  through  the  said  canal,  which  shall  not  be  offered, 
on  the  same  terms,  to  the  subjects  or  citizens  of  the  other. 

"  Art.  2.  Vessels  of  Great  Britain  or  the  United  States  traversing  the 
said  canal  shall,  in  case  of  war  between  the  contracting  parties,  be  ex- 
empted from  blockade,  detention,  or  capture  by  either  of  the  belligerents ; 
and  this  provision  shall  extend  to  such  a  distance  from  the  two  ends  of 
the  said  canal  as  it  may  hereafter  be  found  expedient  to  establish. 

"  Art.  3.  In  order  to  secure  the  construction  of  the  said  canal,  the 
contracting  parties  engage  that  if  any  such  canal  shall  be  undertaken 
upon  fair  and  equitable  terms  by  any  parties  having  the  authority  of  the 
local  government  or  governments  through  whose  territorry  the  same  may 
pass,  then  the  persons  employed  in  making  the  said  canal,  and  their 
property  used  or  to  be  used  for  that  object,  shall  be  protected,  from  the 
commencement  of  the  said  canal  to  its  completion,  by  the  Governments 
of  Great  Britain  and  the  United  States,  from  unjust  detention,  confisca- 
tion, seizure,  or  any  violence  whatsoever. 

r*990~i  *"  ^k  ^"  ^Qe  contorting  parties  will  use  whatever  influence 
-•  they  respectively  exercise  with  any  State,  States,  or  Governments 
possessing,  or  claiming  to  possess,  any  jurisdiction  or  right  over  the  ter- 
ritory which  the  said  canal  shall  traverse,  or  which  shall  be  near  the 
waters  applicable  thereto,  in  order  to  induce  such  States  or  Governments 
to  facilitate  the  construction  of  the  said  canal  by  every  means  in  their 
power;  and  furthermore,  Great  Britain  and  the  United  States  agree  to 
use  their  good  offices,  wherever  or  however  it  may  be  most  expedient,  in 
order  to  procure  the  establishment  of  two  free  ports,  one  at  each  end  of 
the  said  canal. 

"Art.  5.  The  contracting  parties  further  engage,  that  when  the   said 

(a)  Vide  infra. 


ISTHMUS     OF     CENTRAL    AMERICA.  185 

canal  shall  have  been  completed,  they  will  protect  it  from  interruption, 
seizure,  or  unjust  confiscation,  and  that  they  will  guarantee  the  neutrality 
thereof,  so  that  the  said  canal  may  for  ever  be  open  and  free,  and  the 
capital  invested  therein  secure.  Nevertheless,  the  Governments  of  Great 
Britain  and  the  United  States,  in  according  their  protection  to  the  con- 
struction of  the  said  canal,  and  guaranteeing  its  neutrality  and  security 
•when  completed,  always  understand  that  this  protection  and  guarantee 
are  granted  conditionally,  and  may  be  withdrawn  by  both  Governments, 
or  either  Government,  if  both  Governments  or  either  Government  should 
deem  that  the  persons  or  company  undertaking  or  managing  the  same 
adopt  or  establish  such  regulations  concerning  the  traffic  thereupon,  as 
are  contrary  to  the  spirit  and  intention  of  this  Convention,  either  by 
making  unfair  discriminations  in  favour  of  the  commerce  of  one  of  the 
contracting  parties  over  the  commerce  of  the  other,  or  by  imposing  op- 
pressive exactions  or  unreasonable  tolls  upon  passengers,  vessels,  goods, 
wares,  merchandise,  or  other  articles.  Neither  party,  however,  shall 
withdraw  the  aforesaid  protection  and  guarantee,  without  first  giving  six 
months'  notice  to  the  other. 

"  Art.  6.  The  contracting  parties  in  this  Convention  engage  to  invite 
every  State  with  which  both  or  either  have  *friendly  intercourse,  r*ooii 
to  enter  into  stipulations  with  them  similar  to  those  which  they  L 
have  entered  into  with  each  other,  to  the  end  that  all  other  States  may 
share  in  the  honour  and  advantage  of  having  contributed  to  a  work  of 
such  general  interest  and  importance  as  the  canal  herein  contemplated ; 
and  the  contracting  parties  likewise  agree,  that  each  shall  enter  into 
treaty  stipulations  with  such  of  the  Central  American  States  as  they  may 
deem  advisable,  for  the  purpose  of  more  effectually  carrying  out  the 
great  design  of  this  Convention,  namely,  that  of  constructing  and  main- 
taining the  said  canal  as  a  ship  communication  between  the  two  oceans 
for  the  benefit  of  mankind,  on  equal  terms  to  all,  and  of  protecting  the 
same;  and  they  also  agree,  that  the  good  offices  of  either  shall  be  em- 
ployed, when  requested  by  the  other,  in  aiding  and  assisting  the  negotia- 
tion of  such  treaty  stipulations ;  and  should  any  differences  arise  as  to 
right  or  property  over  the  territory  through  which  the  said  canal  shall 
pass,  between  the  States  or  Governments  of  Central  America,  and  such 
differences  should  in  any  way  impede  or  obstruct  the  execution  of  the 
said  canal,  the  Governments  of  Great  Britain  and  the  United  States  will 
use  their  good  offices  to  settle  such  differences,  in  the  manner  best  suited 
to  promote  the  interests  of  the  said  canal,  and  to  strengthen  the  bonds  of 
friendship  and  alliance  which  exist  between  the  contracting  parties. 

"Art.  7.  It  being  desirable  that  no  time  should  be  unnecessarily  lost 
in  commencing  and  constructing  the  said  canal,  the  Governments  of 
Great  Britain  and  the  United  States  determine  to  give  their  support  and 
encouragement  to  such  persons  or  company  as  may  first  offer  to  commence 
the  same,  with  the  necessary  capital,  the  consent  of  the  local  authorities, 
and  on  such  principles  as  accord  with  the  spirit  and  intention  of  this 
Convention :  and  if  any  persons  or  company  should  already  have,  with 
any  State  through  which  the  proposed  ship-canal  may  pass,  a  contract 
for  the  construction  of  such  a  canal  as  that  specified  in  this  Convention, 

AUGUST,  1854. — 18 


186  PHILLIMORE    ON    INTERNATIONAL    LAW. 

*°  ^e  stipulations  of  which  contract  neither  of  the  contracting 
^parties  in  this  Convention  have  any  just  cause  to  object,  and 
the  said  persons  or  company  shall,  moreover,  have  made  preparations 
and  expended  time,  money,  and  trouble  on  the  faith  of  such  contract,  it 
is  hereby  agreed  that  such  persons  or  company  shall  have  a  priority  of 
claim  over  every  other  person,  persons,  or  company,  to  the  protection  of 
the  Governments  of  Great  Britain  and  the  United  States,  and  be  allowed 
a  year,  from  the  date  of  the  exchange  of  the  ratifications  of  this  Conven- 
tion, for  concluding  their  arrangements,  and  presenting  evidence  of  suffi- 
cient capital  subscribed  to  accomplish  the  contemplated  undertaking;  it 
being  understood,  that  if,  at  the  expiration  of  the  aforesaid  period,  such 
persons  or  company  be  not  able  to  commence  and  carry  out  the  proposed 
enterprise,  then  the  Governments  of  Great  Britain  and  the  United  States 
shall  be  free  to  afford  their  protection  to  any  other  persons  or  company 
that  shall  be  prepared  to  commence  and  proceed  with  the  construction 
of  the  canal  in  question. 

"Art.  8.  The  Governments  of  Great  Britain  and  the  United  States 
having  not  only  desired,  in  entering  into  this  Convention,  to  accomplish 
a  particular  object,  but  also  to  establish  a  general  principle,  they  hereby 
agree  to  extend  their  protection  by  treaty  stipulations  to  any  other  prac- 
ticable communications,  loJiether  by  canal  or  railway,  across  the  isthmus 
which  connects  North  and  South  America;  and  especially  to  the  inter- 
oceanic  communications,  should  the  same  prove  to  be  practicable,  whether 
by  canal  or  railway,  which  are  now  proposed  to  be  established  by  the 
way  of  Tehuantepec  or  Panama.  In  granting,  however,  their  joint  pro- 
tection to  any  such  canals  or  railways  as  are  by  this  Article  specified,  it 
is  always  understood  by  Great  Britain  and  the  United  States,  that  the 
parties  constructing  or  owning  the  same  shall  impose  no  other  charges 
or  conditions  of  traffic  thereupon  than  the  aforesaid  Governments  shall 
approve  of  as  just  and  equitable;  and  that  the  same  canals  or  railways, 
being  open  to  the  subjects  and  citizens  of  Great  Britain  and  the  United 
States  on  equal  terms,  shall  also  be  open  on  like  terms  to  the 
*subjects,  and  citizens  of  every  other  State  which  is  willing  to 
grant  thereto  such  protection  as  Great  Britain  and  the  United  States 
engage  to  afford. 

"Art.  9.  The  ratifications  of  this  Convention  shall  be  exchanged  at 
Washington  within  six  months  from  this  day,  or  sooner  if  possible. 

"In  faith  whereof,  we,  the  respective  Plenipotentiaries,  have  signed 
this  Convention,  and  have  hereunto  affixed  our  Seals. 

"Done  at  Washington,  the  nineteenth  day  of  April,  anno  Domini  One 
thousand  eight  hundred  and  fifty. 

(Signed)  HENRY  LYTTON  BULWER, 

JOHN  M.  CLAYTON."(&) 

CCVIL  Before  the  ratifications  were  exchanged,  it  was  explained  by 
the  British  to  the  American  Plenipotentiary,  that  the  words  "  or  any 
part  of  Central  America"  were  not  to  apply  to  the  British  Settlements 
in  Honduras,  or  its  dependencies.  This  explanation  was  fully  adopted 

(J)  Annual  Register,  vol.  xcii.  (1850)  pp.  387—390. 


SELF-PRESERVATION.  187 

by  the  American  Plenipotentiary,  and  the  ratifications  were  exchanged. 
The  Treaty  was  subsequently  submitted  by  the  President  of  the  United 
States  to  the  Senate, (c)  and  was  approved  of,  after  discussion,  by  that 
deliberative  assembly. 

It  was,  however,  contended  by  certain  persons  averse  to  the  conditions 
of  the  Treaty,  that  the  Senate  did  not  understand  that  the  Treaty  was 
to  be  construed  with  reference  to  the  American  Plenipotentiary's  con- 
sent, which  had  been  expressed  in  the  reply  to  the  British  Plenipoten- 
tiary's explanation  with  respect  to  the  Honduras,  and  consequently  that 
the  Senate  had  in  reality  not  assented  to  the  Treaty  so  qualified. 

Though  there  is  no  ground  for  this  supposition,  the  ^objection 
evinces  how  much  a  knowledge  of  the  department  of  Government 
in  which  the  power  of  "making  and  ratifying  Treaties  is  vested  by  the 
Constitution  of  each  State,  is  necessary  for  the  security  of  the  foreign 
relations  of  all  States. 

CCVIII.  The  reason  of  the  thing  would  indeed  seem  to  have  excluded 
the  Honduras,  as  the  terms  were  employed  in  the  Treaty,  even  without 
the  subsequent  express  limitation,  from  the  category  of  "Central 
America,"  though  geographically  and  literally  within  the  scope  of  the 
expressions.  It  is  true  that  Great  Britain  had  originally  only  certain 
limited  jura  in  re  with  respect  to  the  Honduras,  such  as  the  rights  of 
cutting  mahogany  and  logwood  conceded  to  her  by  Treaties  with  Spain, 
the  right  of  sovereignty  being  reserved  to  the  crown  of  the  latter  coun- 
try; yet  since  Spain  has  ceased  to  exercise  any  sovereignty,  either  at 
Honduras  or  in  the  circumjacent  territory,  and  the  British  jurisdiction  is 
exercised  there  under  a  Commission  of  the  Crown  which  has  been  recog- 
nised by  the  United  States,  inasmuch  as  their  Consul  is  received  at  Belize 
under  the  exequatur  of  the  British  Crown; — since  the  occurrence  of  these 
events,  Honduras  must  be  and  is  considered  as  both  de  facto  and  de  jure 
a  British  settlement;  and  the  terms  in  the  Treaty  would  therefore  appear, 
by  the  ordinary  and  admitted  rules  of  construction, (dj  applied  with  re- 
ference to  the  subject-matter  and  context  of  the  Treaty,  not  to  include 
the  British  possession  of  Honduras. (e) 


*CHAPTER    X.  [*225] 

SELF-PRESERVATION. 

CCIX.  The  Right  of  Self-Preservation,  by  that  defence  which  pre- 
vents, as  well  as  that  which  repels,  attack,  is  the  next  International 
Right  which  presents  itself  for  discussion,  and  which,  it  will  be  seen, 

(c)  Vide  supra,  p.  140.  (d)  Vide  post,  Chapter  on  TREATIES. 

(e)  "Convention  entre  Sa  Majeste  le  Roi  de  la  Grande-Bretagne  et  Sa  Majeste 
le  Roi  d'Espagne,  conclue  ii  Londres  le  14  Juillet,  1786." — Martens,  Rec.  de  Tr. 
iv.  (1786),  pp.  133—140. 

Annual  Register,  1787,  p.  78. 

Times  of  31st  January,  1853. 


188  PHILLIMORE    ON    INTERNATIONAL    LAW. 

may,  under  certain  circumstances,  and  to  a  certain  extent,  modify  the 
Right  of  Territorial  Inviolability. 

OCX.  The  Right  of  Self- Preservation  is  the  first  law  of  nations,  as  it 
is  of  individuals.  A  society  which  is  not  in  a  condition  to  repel  aggres- 
sion from  without,  is  wanting  in  its  principal  duty  to  the  members  of 
which  it  is  composed,  and  to  the  chief  end  of  its  institution. (a) 

All  means  which  do  not  affect  the  independence  of  other  nations  are 
lawful  for  this  end.  No  nation  has  a  right  to  prescribe  to  another  what 
these  means  shall  be,  or  to  require  any  account  of  her  conduct  in  this 
respect. 

CCXI.  The  means  by  which  a  nation  usually  provides  for  her  safety 
are,  1.  By  alliances  with  other  states;  2.  By  maintaining  a  military  and 
naval  force ;  and,  3.  By  erecting  fortifications,  and  taking  measures  of 
the  like  kind  within  her  own  dominions.  Her  full  liberty  in  this  res- 
pect cannot,  as  a  general  principle  of  International  Law,  be  too  boldly 
f~*99fi~l  announced  or  too  firmly  maintained;  though  some  *modification 
J  of  it  appears  to  flow  from  the  equal  and  corresponding  rights  of 
other  nations,  or  at  least  to  be  required  for  the  sake  of  the  general  wel- 
fare and  peace  of  the  world. 

CCXII.  Armaments  suddenly  increased  to  an  extraordinary  amount, 
are  calculated  to  alarm  other  nations,  whose  liberty  they  appear,  more 
or  less,  according  to  the  circumstances  of  the  case,  to  menace. (i) 

It  has  been  usual,  therefore,  to  require  and  receive  amicable  explana- 
tions of  such  warlike  preparations;  the  answer  will,  of  course,  much 
depend  upon  the  tone  and  spirit  of  the  requisition. 

Thus  the  British  Secretary  for  Foreign  Affairs  (Lord  Grenville),  in 
1793,  replied  to  Monsieur  Chauvelin  (who  had  been  the  accredited  min- 
ister of  the  king  of  France,  and  remained  in  England  after  the  Republic 
was  declared),  "  It  is  added,  that  if  these  explanations  should  appear  to 
us  unsatisfactory  ;  if  you  are  again  obliged  to  hear  the  language  of 
haughtiness;  if  hostile  preparations  are  continued  in  the  ports  of  Eng- 
land, after  having  exhausted  everything  which  could  lead  to  peace,  you 
will  dispose  yourselves  to  war. 

"  If  this  notification,  or  that  which  related  to  the  treaty  of  commerce, 
had  been  made  to  me  in  a  regular  and  official  form,  I  should  have  found 
myself  obliged  to  answer,  that  a  threat  of  declaring  war  against  Eng- 
land, because  she  thinks  proper  to  augment  her  forces,  as  well  as  a  de- 
claration of  breaking  a  solemn  Treaty,  because  England  has  adopted  for 
her  own  security  precautions  of  the  same  nature  as  those  which  are 
already  established  in  France,  could  neither  of  them  be  considered  in 
any  other  light  than  that  of  new  offences,  which,  while  they  subsisted, 
would  preclude  all  negotiation."(c) 

CCXIII.  We  have  hitherto  considered  what  measures  a  nation  is 

(d)  Vattel,  t.  i.  C.  XIV.  B.  177.  "  Oi  yap  aip«<nj  lariv  fiftiv  TOV  irpay/xaroy,  dXX'  vnoXei- 
vtrai  T&  SiKatdraTOv  Kai  dvayica.i6Ta.TOv  T&V  epyiav,  8  VTrcpffaivovaiv  cx6i/Tes  ovrot,  ri  ovv  tori 
TOVTO  ;  d/jLVviaQai  rdv  npdrtpov  -noKc^oiivQ'  tijiiv."  0.  Demosth.  irepl  TUV  ev  Xeppov.  Est 

igitur  haec  non  scripta  sed  nata  lex,  &c.     4.  Cic.  pro  Milone. 
(6)  Martens,  1.  iv.  c.  i.  pp.  116-7-8. 
(c)  State  Papers  during  the  War,  Lond.  1794,  p.  242. 


SELF-PRESERVATION.  189 

entitled  to  take,  for  the  preservation  of  her  safety,  within  her  own 
dominions.  It  may  happen  that  the  same  Right  may  warrant 
her  in  extending  precautionary  measures  without  these  limits,  and  even 
in  transgressing  the  borders  of  her  neighbour's  territory.  For  Interna- 
tional Law  considers  the  Right  of  Self-Preservation  as  prior  and  para- 
mount to  that  of  Territorial  Inviolability,  and,  where  they  conflict,  jus- 
tifies the  maintenance  of  the  former  at  the  expense  of  the  latter  right. 

The  case  of  conflict  indeed  must  be  indisputable,  pomeridiana  luce 
clarior  in  the  language  of  canonists.  Such  a  case,  however,  is  quite 
conceivable.  A  rebellion,  or  a  civil  commotion,  it  may  happen,  agitates 
a  nation ;  while  the  authorities  are  engaged  in  repressing  it,  bands  of 
rebels  pass  the  frontier,  shelter  themselves  under  the  protection  of  the 
conterminous  state,  and. from  thence,  with  restored  strength  and  fresh 
appliances,  renew  their  invasions  upon  the  State  from  which  they  have 
escaped.  The  invaded  State  remonstrates.  The  remonstrance,  whether 
from  favour  to  the  rebels,  or  feebleness  of  the  executive,  is  unheeded,  or, 
at  least,  the  evil  complained  of  remains  unredressed. 

In  this  state  of  things  the  invaded  State  is  warranted  by  International 
Law  in  crossing  the  frontier,  and  in  taking  the  necessary  means  for  her 
safety,  whether  these  be  the  capture  or  dispersion  of  the  rebels,  or  the 
destruction  of  their  stronghold,  as  the  exigencies  of  the  case  may  fairly 
require. 

CCXIV.  Vattel  maintains  strongly  this  opinion  :  "  H  est  certain  que 
si  mon  voisin  donnait  retraite  a  mes  ennemis  lorsqu'ils  auraient  dupire 
et  se  trouveraient  trop  faibles  pour  m'echapper,  leur  laissant,  le  temps  de 
se  refaire,  et  d'epier  I' occasion  de  tenter  une  nouvelle  irruption  sur  mes 
terres,  cette  conduite,  si  prejudiciable  a  ma  surete  et  a  mes  interets, 
serait  incompatible  avec  la  neutralite.  Lors  done  que  mes  ennemis  bat- 
tus  se  retirent  chez  lui,  si  la  charite  ne  lui  permet  pas  de  leur  refuser 
passage  et  surete,  il  doit  les  faire  passer  outre  le  plus  tot  possible,  et  ne 
point  souffrir  qu'ils  se  tiennent  aux  aguets  pour  m'attaquer  de  nouveau; 
autrement  il  me  met  en  droit  de  les  aller  chercher  dans  ses  *terres.  r#nr>o-i 
C'est  ce  qui  arrive  aux  nations  qui  ne  sont  pas  en  etat  de  faire  L 
respecter  leur  territoire;  le  theatre  de  la  guerre  s'y  etablit  bientot;  on  y 
marche,  on  y  campe,  on  s'y  bat,  conime  dans  un  pays  ouvert  a  tous 
venants."(d) 

COXY.  The  hypothetical  case  here  described,  was  that  which  G-reat 
Britain  alleged  to  have  actually  occurred,  except  that  the  circumstances 
were  of  a  more  aggravated  character,  with  respect  to  the  invasion  of  her 
Canadian  possessions  in  1838.  For  she  alleged,  that  the  Canadian  rebels 
not  only  found  shelter  on  the  American  frontier  of  the  Niagara,  but  that 
American  citizens  joined  the  rebels,  and  that  they  obtained  arms,  by 
force  indeed,  from  the  American  arsenals,  and  that  shots  were  fired  from 
an  Island  within  the  American  territories,  while  a  steamer  called  the 
"  Caroline"  was  employed  in  the  transport  of  munitions  of  war  to  the 
Island,  which  when  not  so  employed  was  moored  off  the  American  shore. 
In  this  state  of  things  a  British  captain  and  crew  having  boarded  and 

(d]  Lib.  iii.  c.  vii.  s.  133. 


190  PHILLIMORE    ON    INTERNATIONAL    LAW. 

forcibly  captured  the  "  Caroline/'  cut  her  adrift,  and  sent  her  down  the 
falls  of  Niagara.  The  act  was  made  the  subject  of  complaint,  on  the 
ground  of  violation  of  territory,  by  the  American  Government,  and  vin- 
dicated by  Great  Britain  on  the  ground  of  self-preservation ;  which,  if 
her  version  of  the  facts  were  correct,  was  a  sufficient  answer,  and  a  com- 
plete vindication,  (e) 

CCXVI.  In  1826,  the  mustering  and  equipment  of  Portugese 
rebels(A  on  the  Spanish  frontier,  unchecked  by  the  Spanish  author- 
ities, was  considered  by  Great  Britain  as  obliging  her  to  consider  that 
"  casus  foederis,"  on  the  happening  of  which  she  was  bound  to  assist  her 
ally,  to  have  actually  arisen ;  and  she  accordingly  sent  troops  to  Portu- 
gal. 

CCXVII.  Upon  the  same  principle,  though  a  nation  has  a  right  to 
r*ooQ-,  afford  refuge  to  the  expelled  governors,  or  even  the  *leaders  of 
J  rebellion  flying  from  another  country,  she  is  bound  to  take  all 
possible  care  that  no  hostile  expedition  is  concerted  in  her  territories,  and 
to  give  all  reasonable  guarantees  upon  this  subject,  in  answer  to  the  re- 
monstrances of  the  nation  from  which  the  exiles  have  escaped. (#)  During 
the  time  when  the  residence  of  the  Pretender  in  France  within  the  vicin- 
ity of  England,  gave  reasonable  alarm  to  the  British  Government,  the 
removal  of  his  residence  to  a  place  of  less  danger  to  Great  Britain  formed 
the  subject  of  the  stipulations  of  various  Treaties.  If  the  hostile  expe- 
dition of  the  present  Emperor  of  the  French  in  1842,  against  the  then 
existing  monarchy  of  France,  had  taken  place  with  the  sanction  or  con- 
nivance of  the  British  Government,  England  would  have  been  guilty  of 
a  very  gross  violation  of  International  Law ;  and  she  showed  at  the  time 
a  wise  and  just  anxiety  to  purge  herself  from  any  such  suspicion.  But 
though  the  strange  and  almost  unparalleled  vicissitudes  of  fortune  after- 
wards compelled  the  very  monarch,  against  whom  that  expedition  had 
been  directed,  to  take  refuge  in  this  country,  the  then  representative  of 
the  executive  of  France,  though  the  leader  of  that  expedition,  had  no 
cause  of  complaint,  either  on  this  ground,  or  because  other  political 
refugees,  professing  all  shades  and  kinds  of  opinion,  resided  in  safety  in 
England;  which,  before  it  was  their  refuge,  *had  so  often  been, 
and  indeed  still  is,  the  theme  of  their  vituperation. 

CCXVIII.  In  all  cases  where  the  territory  of  one  nation  is  invaded 

(e)  Vide  post,  authorities  and  references. 

(/)  Mr.  Canning's  Speech  on  the  King's  message  relative  to  the  affairs  of  Portu- 
gal, December  12th,  1826. — Canning's  Speeches,  vol.  vi.  p.  60. 

(g)  "  Les  Princes  de  Transilvanie  refuseront  asyle  aux  ennemis  de  la  Maison 
d'Autriche;  et  reciproquement  cette  Puissance  ne  pourra  donner  retraite  aux 
ennemis  des  Princes  et  Etats  de  Transilvanie." — Traite  de  Vienne,  Art.  12;  Mably, 
Le  Droit  Public,  t.  ii.  p.  59. 

"  L'annee  1716  fut  employee  en  negociations  entre  la  France,  1'Angleterre  et  les 
Provinces  Unies  ;  et  dans  la  suivante,  ces  Puissances  signerent  a  la  Haye  le  Traite 
de  la  Triple  Alliance.  La  France  se  chargeoit  d'eugager  le  Chevalier  de  Saint- 
Georges  a  sortir  du  Comtat  d' Avignon  pour  se  retirer  au-dela  des  Alpes.  Chaque 
contractant  prommettoit  de  ne  donner  aucun  asyle  ser  ses  terres,  aux  personnes 
qui  seroient  de"clar6es  rebelles  par  1'un  des  deux  autres." — Ib.  p.  119. 

"  La  France  promet  de  ne  point  reconnoitre  les  droits  que  le  fils  du  Roi  Jacques 
II.  peut  avoir  sur  1'Angleterre,  et  de  ne  le  pas  souffrir  sur  ses  terres." — Traite 
d'Ut.  Fr.  Ang.  Art.  4;  Ib.  p.  157. 


SELF-PRESERVATION.  191 

from  the  country  of  another, — whether  the  invading  force  be  composed 
of  the  refugees  of  the  country  invaded,  or  of  subjects  of  the  other  country , 
or  of  both — the  Government  of  the  invaded  country  has  a  right  to  be 
satisfied  that  the  country  from  which  the  invasion  has  come,  has  neither 
by  sufferance  nor  reception  (patientid,  aut  receptu\  knowingly  aided  or 
abetted  it.  She  must  purge  herself  of  both  these  charges,  otherwise,  if 
the  cause  be  the  feebleness  of  her  Government,  the  invaded  country  is 
warranted  in  redressing  her  own  wrong,  by  entering  the  territory,  and 
destroying  the  preparations  of  war  therein  made  against  her;  or,  if 
these  have  been  encouraged  by  the  Government,  then  the  invaded  country 
has  a  strict  right  to  make  war  upon  that  country  herself ;  because  she 
has  afforded  not  merely  an  asylum,  but  the  means  of  hostility  to  the  foes 
of  a  nation,  with  whom  site  was  at  peace.  For  it  never  can  be  maintained, 
that  however  much  a  State  may  suffer  from  piratical  incursions,  which 
the  feebleness  of  the  executive  government  of  the  country  whence  they 
issue  renders  it  incapable  of  preventing  or  punishing,  that,  until  such 
government  shall  voluntary  acknowledge  the  fact,  the  injured  State  has 
no  right  to  give  itself  that  security,  which  its  neighbour's  Government 
admits  that  it  ought  to  enjoy,  but  which  that  Government  is  unable  to 
guarantee. 

It  must  be  admitted  that  there  is  a  practical  acknowledgment  of  such 
inability,  which,  as  much  as  a  voluntary  confession,  justifies  the  offended 
country  in  a  course  of  action  which  would  under  other  circumstances  be 
unlawful.  There  is  a  very  important  chapter,  both  in  Grotius,  and  in 
his  commentator  Heineccius,  entitled  "de  poenarum  communicatione," 
as  to  when  the  guilt  of  a  malefactor,  and  its  consequent  punishment,  is 
communicated  to  others  than  himself :  and  the  question  is  particularly 
considered  with  reference  to  the  responsibility  of  a  State  for  the  conduct 
of  its  citizens.  The  *test  for  discovering  "  Civitasne  delinquent  p^o-i  n 
an  cives  ?"  are  laid  down  with  great  precision  and  unanimity  of  L 
sentiment  by  all  Publicists,  and  are  generally  reduced  to  two,  as  will  be 
seen  from  the  following  extract  from  Burlemaqui(A)  (who  repeats  the 
opinion  of  Grotius(t)  and  Heineccius.)  "  In  civil  societies/'  (he  says,) 
"  when  a  particular  member  has  done  an  injury  to  a  stranger,  the  gover- 
nor of  the  commonwealth  is  sometimes  responsible  for  it,  so  that  war 
may  be  declared  against  him  on  that  account.  But  to  ground  this  kind 
of  imputation,  we  must  necessarily  suppose  one  of  these  two  things  suf- 
ferance or  reception ,(&)  viz.  either  that  the  sovereign  has  suffered  this 
harm  to  be  done  to  the  stranger,  or  that  he  afforded  a  retreat  to  the 
criminal.  In  the  former  case,  it  must  be  laid  down  as  a  maxim,  that  a 
sovereign  who,  knowing  the  crimes  of  his  subject — as,  for  example,  that 
they  pactise  piracy  on  strangers, — and  being  also  able  and  obliged  to 

(#)  The  Principles  of  Natural  and  Public  Law,  by  J.  J.  Burlemaqui,  Professor 
at  Geneva.  I  only  possess  the  English  translation,  London,  1763.  Sir  J.  Mackin- 
tosh calls  him  "  an  author  of  distinguished  merit." 

(?)  See  Grotius  de  J.  B.  &  P.  1.  ii.  c.  xxi. ;  De  Poanarum  Communicatione ;  and 
the  admirable  Praelectiones  of  Heineccius  on  this  chapter. 

Vattel,  1.  ii.  c.  vi. :  "  De  la  part  que  la  nation  peut  avoir  aux  actions  de  ses 
citoyens." 

(k)  "  Patientia  aut  receptu." — Grot.  &  Heiness. 


192  PHILLIMORE    ON     INTERNATIONAL    LAW. 

hinder  it,  does  not  hinder  it,  renders  himself  criminal,  because  he  has 
consented  to  the  bad  action,  the  commission  of  which  he  has  permitted, 
and  consequently  furnished  a  just  reason  of  war.  The  two  conditions 
above  mentioned,  I  mean  the  knowledge  and  sufferance  of  the  sovereign, 
are  abolutely  necessary,  the  one  not  being  sufficient  without  the  other  to 
communicate  any  share  in  the  guilt.  Now  it  is  presumed  that  a 
sovereign  knows  what  his  subjects  openly  and  frequently  commit;  and 
as  to  his  power  of  hindering  the  evil,  this  likewise  is  always  presumed, 
unless  the  want  of  it  be  clearly  proved."  So  Vattel :(/)  "Si  un 
souverain  (lu'  pourrait  retenir  ses  *sujets  dans  les  regies  de  la 
justice  et  de  la  paix,  souffre  qu'ils  maltraitent  une  nation,  ou  dans 
son  corps  ou  dans  ses  membres,  il  ne  fait  pas  moins  de  tort  a  toute  la 
nation,  que  s'il  la  maltraitait  lui-meme/Ym) 

The  act  of  an  individual  citizens,  or  of  a  small  number  of  citizens, 
is  not  to  be  imputed,  without  special  proof,  to  the  nation  or  Government 
of  which  they  are  subjects.(rc)  A  different  rule  would  of  course  apply  to 
the  acts  of  large  numbers(o)  of  persons,  especially  if  they  appeared  in 
the  array  and  with  the  weapons  of  a  military  force,  as  in  the  case  of  the 
invasion  of  Portugal  which  has  been  referred  to  above. 

CCXIX.  The  consideration  of  the  means  by  which  nations  have 
enabled  themselves  to  perform  this  duty  toward  their  neighbours  and  the 
rest  of  the  world,  and  of  the  very  important  and  much-vexed  question 
of  the  lawfulness  of  allowing  a  friendly  power  to  raise  troops  in  a 
neutral  territory,  *will  be  discussed  when  we  enter  upon  the 
Right  of  Jurisdiction,  incident  to  a  State,  over  all  persons  and 
things  within  the  territory,  and  also  in  a  later  part  of  this  work  upon  the 
Rights  and  Duties  of  Neutrals.  But  this  present  is  not  an  unfit  place 
for  offering  some  general  remarks  upon  the  control  exercised  by  the  State 
over  strangers,  whether  domiciled  and  commorant  (habitans^  or  merely 
travellers  through  the  country  (Strangers  qui passent.(p}  ) 

It  is  a  received  maxim  of  International  Law,  that  the  Government  of 

(I)  Book  ii.  c.  vi.  s.  72. 

(m)  Letter  to  Lord  Ashburton,  by  R.  Phillimore,  pp.  27,  183  ;  London,  1842. 

(n)  "  Cependant,  comme  il  est  impossible  a  1'Etat  le  mieux  re"gle",  au  souverain 
le  plus  vigilant  et  le  plus  absolu,  de  mode'rer  a  sa  volonte  toutes  les  actions  de 
ses  sujets,  de  les  contenir  en  toute  occasion  dans  la  plus  exact  obgissance,  il  serait 
injuste  d'imputer  a  la  nation  ou  au  souverain  toutes  les  fautes  des  citoyens.  On 
ne  peut  done  dire,  en  general,  que  1'on  a  rec.u  une  injure  d'une  Nation,  parce  qu'on 
1'aura  recue  de  quelqu'un  de  ses  membres  (on  ne  peut  imputer  a  la  nation  les 
actions  des  particuliers.") — Vattel  t.  i.  1.  ii.  c.  vi.  s.  73. 

(o)  Heffters,  zweites  Buch,  Volkerrecht  im  Zustand  des  Unfriedens,  s.  148,  pp. 
258-9  :  After  saying  that  what  the  State  may  not  lawfully  do  collectively  it  may 
not  do  individually — "  Sollte  freilich  die  Theilnahme  der  Unterthanan  eine  massen- 
hafte  werden,  dadurch  die  Aufmerksamkeit  und  Bedenklichkeif.  der  Gegenpartei 
erregen,  demnach  Repressalien  derselben  befiirchten  lassen." 

Zouch,  De  Judicio  inter  Gentes,  pars  ii.  s.  vi.  p.  120  (ed  Oxonias,  1650):  "  An 
repraesalise  sint  licitas  ?  Imperator  Zeno  aequitati  natural!  contrarium  dicit  ut, 
pro  alieno  debito,  alii  molestentur  ;  et  in  Novella  Justiniani  prohibentur  Piguora- 
tiones  pro  aliis ;  addita  causa,  Quod  Rationem  non  habet,  alium  esse  debitorem, 
alium  exigi :  Jure  tamen  Gentium  introductum  apparet,  ut  pro  eo  quod  praestare 
debet  Civilis  Societas,  aut  ejus  caput,  sive  pur  se  primo,  sive  quod  alieno  debito 
jus  non  reddendo  se  obstrinxerint  obligata  sint  omnia  bona  subditorum." 

(p)  Vattel,  1.  i.  c.  xix.  s.  213,  1.  ii.  c.  viii.  passim. 


SELF-PRESERVATION.  193 

a  State  may  prohibit  the  entrance  of  strangers  into  the  country,  and 
may  therefore  regulate  the  conditions  under  which  they  shall  be  allowed 
to  remain  in  it,  or  may  require  and  compel  their  departure  from  it. 
According  to  the  Law  of  England,  local  allegiance  is  due  from  an  alien 
or  stranger  born,  so  long  as  he  continues  within  the  protection  and 
dominion  of  the  Crown;  and  it  ceases  the  instant  he  transfers  himself 
from  this  kingdom  to  another.  The  allegiance  and  the  protection  of  the 
stranger,  therefore,  are  both  confined,  in  point  of  time,  to  the  duration 
of  the  residence ;  and  in  point  of  locality,  to  the  dominion  of  the  British 
Empire. (5)  During  periods  of  revolutionary  disturbances  both  on  the 
Continent  and  within  this  kingdom,  it  has  been  customary  to  pass  Acts 
of  Parliament  authorising  certain  high  officers  of  the  State  to  order  the 
departure  of  aliens  from- the  realm  within  a  specified  time  and  their 
imprisonment  in  case  of  refusal.  These  acts  have  generally  been  limited 
in  their  duration :  the  operation  of  the  last  was  confined  to  the  period  of 
one  year.(r) 

(q)  Calvin's  case,  7  Coke's  Report's,  6  a. 

Stephen's  Blackstone,  vol.  ii.  6,  iv.  pt.  i.  c.  11. 

1  Bale's  Pleas  of  the  Crown,  60. 

(r)  "  This  power,"  as  Mr.  Canning  observed,  "  had  undoubtedly  been  exercised 
by  the  Crown,  sometimes  with,  sometimes  without,  the  consent  of  Parliament." 
(5  Canning's  Speeches,  p.  255.)  The  33  Geo.  III.  c.  4.  A.  D.  1793,  was  the  first 
Alien  Act  passed  by  the  Parliament  of  this  *kingdom,  and  was  followed  r*234 
up  by  Lord  Grenvill's  note,  dismissing  Monsieur  Chauvelin. 

Translation. 

"Whitehall,  Jan.  24th,  1793. 

"  I  am  charged  to  notify  to  you,  Sir,  that  the  character  with  which  you  had 
been  invested  at  this  Court,  and  the  functions  of  which  have  been  so  long  sus- 
pended, being  now  entirely  terminated  by  the  fatal  death  of  His  late  most  Chris- 
tian Majesty,  you  have  no  more  any  public  character  here. 

"  The  King  can  no  longer,  after  such  an  event,  permit  your  residence  here. 
His  Majesty  has  thought  fit  to  order  that  you  should  retire  from  this  kingdom 
within  the  term  of  eight  days  ;  and  I  herewith  transmit  to  you  a  copy  of  the  order 
which  His  Majesty  in  his  Privy  Council,  has  given  to  this  effect. 

"  I  send  you  a  passport  for  yourself  and  your  suite ;  and  I  shall  not  fail  to  take 
all  the  other  necessary  steps,  in  order  that  you  may  return  to  France  with  all  the 
attentions  which  are  due  to  the  character  of  Minister  Plenipotentiary  from  His 
Most  Christian  Majesty,  which  you  have  exercised  at  this  Court. 
I  have  the  honour  to  be,  &c. 

"  GRENYILLE." 

(State  Papers  on  the  "War,  p.  245.) 
This  Act  has  been  followed  up  by : — 

38  Geo.  III.  c.  50,  77.  56  Geo.  III.  c.  86. 

41  Geo.  III.  c.  24.  58  Geo.  III.  c.  96. 

42  Geo.  III.  c.  93.  1  Geo.  IV.  c.  105. 

43  Geo.  HI.  c.  155.  3  Geo.  IV.  c.  97. 

54  Geo.  III.  c.  155.  5  Geo.  IV.  c.  37. 

55  Geo.  III.  c.  54. 

The  last  Statute  was  passed  on  June  9th,  1848,  11  &  12  Viet.  c.  20. ;  "  An  Act 
to  authorise  for  one  Year  and  to  the  End  of  the  then  next  Session  of  Parliament 
the  Removal  of  Aliens  from  the  Realm." 

Homer's  Memoirs,  vol.  ii.  p.  522.    Speech  on  the  Alien  Bill,  1816. 


194  PHILLIMORE    ON    INTERNATIONAL    LAW. 


[*235J  *CH  AFTER   XL 

RIGHT   TO   A   FREE   DEVELOPMENT   OP   NATIONAL  RESOURCES   BY 
COMMERCE. 

CCXX.  This  Right(a)  is  little  more  than  a  consequence  from  what 
has  been  already  stated  with  respect  to  the  free  navigation  of  the  ocean, 
and  the  exceptions  which  the  International  Law  has  sanctioned  in  the 
case  of  particular  portions  of  the  ocean.  The  general  law  as  to  the  perfect 
liberty  of  commerce  incident  to  every  nation,  is  forcibly  and  truly  stated 
by  Grrotius  :(6)  "  Quominus  gens  quaoque  cum  quavis  gente  seposita 
commercium  colat,  impediendi  nemini  jus  est  :  id  enim  permitti  interest 
societatis  humanae;  nee  cuiquam  damno  id  est  :  nam  etiani  si  cui  lucrum 
speratum,  sed  non  debitum  decedat,  id  damni  vice  reputari  non  debet." 

The  extravagant  pretentious  of  Spain  and  Portugal  to  exclusive  com- 
merce with  the  East  and  West  Indies,  and  their  practical  abandonment, 
have  been  discussed  in  a  former  chapter.  It  is,  however,  perfectly  com- 
petent to  any  nation  to  make  what  regulations  it  pleases  with  respect  to 
*ts  own  commerce>  *°  admit  every  nation  equally  to  it,  to  exclude 
*nations  from  it,  to  admit  some  under  favourable,  and  others 
under  unfavourable  conditions,  unless,  indeed,  such  original  liberty  be 
curtailed  by  the  express  provisions  of  a  Treaty. 

A  nation  has  the  same  power  of  restricting  commerce  with  regard  to 
its  distant  provinces  and  colonies.  Every  colony  almost  has,  at  one  time 
or  other,  been  confined  to  commercial  intercourse  with  its  mother  coun- 
try, or  to  some  great  privileged  company  of  that  country.  Every  page 
of  the  history  of  collonial  dependencies  shows  with  what  rigour  this 
monopoly  has  been  exerted  by  the  mother  country  in  time  of  peace,  and 
with  what  jealousy  the  forced  relaxation  of  such  monopoly  in  time  of 
war  by  one  belligerent  in  favour  of  neutrals,  has  been  regarded  by  the 
other  belligerent.  England  has  steadily  denied  to  the  neutral  the  right 
of  carrying  on  that  commerce  with  the  colonies  of  the  belligerent  in  time 
of  war  from  which  it  had  been  excluded  in  time  of  peace.  But  this  sub- 
ject belongs  to  another  part  of  this  work. 

"  The  colonial  monopoly,  that  fruitful  source  of  wars"  (Mr.  Wheaton 
writes  in  1845),  "  has  nearly  ceased  j  and  with  it  the  question  as  to  the 
right  of  neutrals  to  enjoy  in  war  the  commerce  prohibited  in  time  of 
peace."(c) 

The  whole  status  of  Consuls  is  considered  in  a  later  portion  of  this 


(a)  "  Commercium  cum  Turcis  vetitum  dicere  lege  omnes  videntur.  Et  mihi 
tamen  non  libet  facile  discedere  ill  regula  certissima  Juris  Gentium,  quod  constituit 
commercia,  nee  distinguit  aliquid  de  Gentibus."  —  Albericus  Gent,,  Advoc.  Hispan. 
cc.  25,  26. 

Grotius,  1.  ii.  c  2,  5. 

Martens,  1.  iv.  c.  iii.  s.  139. 

Kltiber,  s.  69. 

Masse",  Le  Droit  Commercial  dans  ses  rapports  avec  le  Droit  des  Gens  et  le  Droit 
Civil,  t.  i.  1.  ii.  p.  88.  (b)  L.  ii.  c.  2,  13.  5. 

(c)  Hist.  pp.  759-60.  (d)  Et  vide  ante,  Ch.  ii.  1.  xiii. 


RIGHT    OF    ACQUISITION.  195 


"CHAPTER   XII.  [*237] 

RIGHT   OP   ACQUISITION. 

CCXXI.  In  the  discussion  upon  the  Rights  of  Territorial  Inviolability, 
the  fact  of  rightful  possession  has  been  assumed. (a)  "  Totum  autem 
jus/'  (the  Roman  lawyers  say)  "  consistit  aut  in  adquirendo,  aut  in  con- 
servando,  aut  in  minuendo.  Aut  enim  hoc  agitur,  quemadmodum  quid 
cujusque  fiat;  aut  quemadmodum  quis  rem  vel  jus  suum  conservet:  aut 
quomodo  alienet  aut  amittat."(6) 

Before,  however,  we  enter  upon  the  consideration  of  the  manner  in 
which  Acquisitions  are  made  by  a  State,  it  seems  expedient  to  offer  some 
observations  upon  the  nature  of — 

1.  Possession  (possessioj  j  and  of 

2.  Property  (proprietas),  or  Dominion  (dominium\ 

The  Roman  Law(c)  is  the  repository  from  which  all  *jurists, 
whether,  writing  on  private  or  public  law,  have  borrowed  their 
elementary  learning  upon  this  point ;  and  it  is  with  truth  that  a  very 
distinguished  modern  jurist  observes,  "  Possessionis  notio  atque  indoles, 
ejus  acquisitio  vel  omissio,  accuratius  a  jurisconsultis  Romania  definitae 
sunt,  ut  ea  jam  non  facti  solum  sed  juris  quoque  esse  dicatur."(c?  ) 

CCXXII.  The  generic  term  possession  branches  forth  into  various  spe- 
cies.^) 

(a)  "  Leg  territoires  de  1'Europe  ont  ete  appropries  a  chaque  nation  a  la  suite  de 
revolutions  successive3,  dans  lesquelles  la  force,  puis  la  marche  lente  et  logique 
des  evenements,  ont  eu  plus  d'influence  que  le  droit.     L'invasion  des  peuples  du 
nord  dans  le  monde  romain :  plus  tard,  la  reunion  des  diffe*rentes  petites  puissances 
de  la  fe'odalite'  en  Etats  plus  forts  et  moins  nombreux,  sont,  dans  ce  travail,  les 
deux  faits  principaux.     Pendant  ce  long  espace  de  temps,  et  depuis,  des  transfor- 
mations diverges,  des  traites  nombreux,  se  sont  succede,  et  tout  finit  par  constituer 
le  territoire  des  Etats  actuels. 

"  II  serait  inutile  de  discuter  sur  la  legitimite  des  premieres  occupations  qui  se 
rencontrent  &  1'origine  de  ces  Etats." — Des  Moyens  d'acquerir  le  Domaine  Interna- 
tional, par  Eugene  Ortolan,  s.  Ixi.  p.  42. 

(b)  Dig.  1.  i.  t.  iii.  41. 

(c)  Warnkrenig,  Instit.  Juris  Rom.  Privati,  1.  ii.  c.  i.  t.  iii.,  c.  ii.  t.  ii. 
Puchta,  Pandekten,  kap.  2. 

Mackeldey,  Besond.  Theil.  kap.  1. 1.  i. 

Savigny,  Besitzrecht. 

Muhlenbruck,  Doctrina  Pandect.  1.  ii.  c.  2. 

(d)  Warnkcenig,  Instit.  Juris  Romani  Privati,  s.  295. 

In  The  Fama,  5  Robinson's  Adm.  Rep.  pp.  114-16,  Lord  Stowell  applies  the  rules 
relating  to  Possession,  &c.,  in  the  Institutes  and  Digests  to  decide  a  question  of 
International  Law. 

(e)  Dig.  xli.  2  :  "  De  acquirenda,  vel  amittenda  possessione." 
Ib.  xliii.  17:  "  Uti  possidetis." 

Inst.  ii.  t.  vi :  "  De  usucapione." 

"Possessio  appellata  est,  ut  et  Labeo  ait,  a  sedibus,  quasi  positio,  quia  natura- 
liter  tenetur  ab  eo,  qui  ei  insistit;  quam  Graeci  Karo\iiv  dicunt." — Dig.  xli.  2,  1. 

"  Qui  jure  familiaritatis  amici  fundum  ingreditur,  non  videtur  possidere,  quia 
non  eo  animo  ingressus  est,  ut  possideat,  licet  corpore  in  fundo  sit." — Ib.  41. 

"  Quod  meo  nomine  possideo  possum,  et  alieno  nomine  possidere  ;  nee  enim 
muto  mihi  causam  possessionis,  sed  desino  possidere,  et  alium  possessorem  minis- 
terio  meo  facio.  Nee  idem  est  possidere,  et  alieno  nomine  possidere  j  nam  is  pos- 


196  PHILLIMORE    ON     INTERN  A- TIONAL    LAW. 

That  person  is  properly  said  to  possess  a  thing  who  both  actually  and 
corporally  retains  it,  and  who  desires  and  intends  at  the  same  time  to 
make  it  his  own. 

That  person  who,  having  no  such  desire  or  intention,  by  mere  corpo- 
ral act  retains  a  thing,  is,  only  in  a  gross  and  inaccurate  sense,  said  to 
possess  it. 

*That  person  who  retains  a  thing  in  the  conviction  that  he  is 
the  rightful  possessor  of  it,  though  he  be  mistaken,  and  be  not 
the  rightful  possessor,  may  acquire,  by  the  operation  of  time,  a  legal 
title  to  it,  and  be  protected  by  law  in  the  possession  of  it  (ad  usucapionem 
possidet). 

There  are,  therefore,  three  species  of  possession : 

1.  Natural  possession,  or  the  bare  seizing  and  detaining  a  thing  (nalu- 
ralis  possessio,  sive  nuda  rei  detentio\. 

2.  Legal  possession,  by  act  and  intention  (  animo  et  facto,  de  droit  et 
de  fait,  possessio  proprie  sic  dicta.(f]  ) 

3.  Possession  by  operation  of  time  (civilis  possessio]. 

CCXXIII.  Dominion  (dominium]  is  the  fullest  right  which  can  be 
exercised  over  a  thing:  the  right  of  property,  properly  so  called. 

According  to  the  ancient  Roman  Law,  dominium  could  only  be  ac- 
quired by  a  Roman  citizen,  and  through  the  medium  of  certain  strict 
formalities  ("in  mancipio  habere,  ex  jure  Quiritium  Dominus."]  But 
the  Praetor,  following  the  dictates  of  natural  equity  (jus  gentium],  intro- 
duced a  doctrine,  which,  without  these  formalities,  secured  to  the  stranger 
(peregrinus]  as  well  as  the  citizen,  a  dominion  over  the  thing  (in  lonis, 
bonitarium]  which  he  had  lawfully,  and  "jure  gentium"  acquired. 
f*24fn  *  Justinian  abolished  altogether  this  distinction(^)  between 
J  the  ancient  and  the  Praetorian  Equity,  and  established  universally 
the  dominium  jure  gentium.  The  law,  however,  still  recognised  certain 

sidet,  cujus  nomine  possidetur.  Procurator  alienae  possessionis  prsestat  rainiste- 
rium."— Ib.  18. 

"  Justa  enim  an  injusta  adversus  ceteros  possessio  sit,  in  hoc  interdicto  nihil 
refert ;  qualiscunque  enim  possessor  hoc  ipso,  quod  possessor  est,  plus  juris  habet, 
quam  ille,  qui  non  possidet." — Ib.  xliii.  17,  2. 

"  Creditores  missos  in  possessionem  rei  servandse  causa  interdicto  uti  possidetis 
uti  non  posse  ;  et  merito,  quia  non  possident.  Idemque  et  in  ceteris  omnibus,  qui 
custodise  causa  ruissi  sunt  in  possessionem,  dicendum  est." — Ib.  IT,  3,  8. 

"Dejicitur  is,  qui  possidet,  sive  civiliter,  sive  naturaliter  possideat ;  nam  et 
naturalis  possessio  ad  hoc  interdictum  pertinet." — Ib.  xliii.  16.  1.  s.  9. 

(/)  "  Si  me  in  vacuam  possessionem  fundi  Cornelian!  miseris,  ego  putarem  me 
in  fundum  Sempronianum  missum,  et  in  Cornelianum  iero,  non  acquirem  posses- 
ionem,  nisi  forte  in  nomine  tantum  erraverimus,  in  corpore  consenserimus.  Quo- 
niam  autem  in  corpore  non  consenserimus  an  a  te  tamen  recedat  possessio  ?  quia 
animo  deponere  et  mutare  nos  possessionem  posse  et  Celsus  et  Marcellus  scribunt, 
dubitari  potest ;  et  si  animo  acquiri  possessio  potest,  numquid  etiam  acquisita  est? 
sed  non  puto  errantem  acquirere,  ergo  nee  amittet  possessionem  qui  quodammodo 
sub  conditione  recessit  de  possessione." — Dig.  xli.  2,  34. 

"  Differentia  inter  dominium  et  possessionem  hsec  est,  quod  dominium  nihilo 
minus  ejus  manet,  qui  dominus  esse  non  vult,  possessio  autem  recedit  ut  quisque 
constituit  nolle  possidere.  Si  quis  igitur  ea  mente  possessionem  tradidit,  ut  postea 
ei  restituatur,  desinit  possidere." — Ib.  17,  1. 

(ff)  Cod.  vii.  25  :  De  nudo  jure  Quiritium  tollendo. 

Warnkoenig,  Instit.  J.  R.  1.  ii.  ch.  i.  t.  3. 


RIGHT    OF    ACQUISITION.  197 

modes  of  acquiring  property :  these  were  either  according  to  the  jus  gen- 
tium or  the  jus  civile. 

The  principal  modes  under  the  jus  gentium  were : 

1.  Occupation  (occupatio). 

2.  Natural  increase  (accessio). 

3.  Transfer  (traditioy.  either 

(  «.  inter  vivos, 

1  /3.  or  by  testament  or  succession. 
The  mode  of  acquisition  under  the  jus  civile  was, 

1.  By  the  effect  of  a  law  (lege). 

2.  By  a  judicial  sentence  (adjudication^. 

3.  By  the  operation  of  time  (vetustatis  auctoritate,  usucapione,  prse- 
scriptione). 

Dominion  might  suffer  an  interruption  by  the  invasion  of  another 
person  (usurpatio). 

1.  By  an  overt  act  on  the  part  of  an  individual  (naturalis  usurpatioy, 

2.  By  an  adverse  decision  of  a  legal  tribunal  (civilis  usurpatio\ 

As  Dominion  is  acquired  by  the  combination  of  the  two  elements  of 
fact  and  intention,  so,  by  the  dissolution  of  these  elements,  or  by  the 
contrary  fact  and  intention,  it  may  be  lost(A)  or  extinguished. (t) 

The  application  of  these  principles  of  Roman  jurisprudence  to  the  sys- 
tem of  International  Law  appears  to  have  been  readily  made  by  G-rotius 
and  other  jurists;  and  without  some  acquaintance  both  with  the  language 
and  doctrine  of  the  Roman  *Law  upon  the  subject  of  Possession  p#~ .,-. 
and  Dominion,  it  is  impossible  correctly  to  understand  and  justly  L 
to  appreciate  the  writings  of  commentators  upon  International  Law. 

It  will  be  well  to  recite,  as  a  preface  to  the  discussion  upon  the  Rights 
of  Acquisition  by  a  State,  the  doctrine  and  language  of  Bynkershoek : 
"  Postquam  Lex  certos  dominii  acquirendi  modos  prsescripsit,  hos  seque- 
mur."(&)  From  Grotius(?)  we  learn  that  these  modes  of  Acquisition 
were: 

1.  By  Occupation  (occupatione  derelicti}. 

2.  By  Treaty  and  Convention  (pactionibus}. 

3.  By  Conquest  (victories  jure], 

And  if  Acquisition  by  Accession  and  by  Prescription  be  considered  as 
corollaries  to  Occupation,  and  all  cases  of  Transfer  be  held  to  fall  under 
the  category  of  Treaty  and  Convention,  the  enumeration  may  be  con- 
sidered as  sufficiently  complete. (m) 

(A)  "  Quemadmodum  nulla  possessio  acquiri  nisi  animo  et  corpore  potest,  ita  nulla 
omittitur  nisi  in  qua  utramque  in  contrarium  actum  est." — Dig.  xli.  2,  8. 

(t)  Vide  post.  (k)  Opera,  iii.  254  :  De  Dominio  Maris. 

(1)  Lib.  ii.  c.  ix.  s.  11.  p.  338. 

(m)  "  Dominiumque  rerum  ex  natural!  possessione  coepisse,  Nerva  filing  ait, 
ejusque  rei  vestigium  remanere  in  his,  quae  terra,  mari,  coeloque  capiuntur;  nam 
haec  protinus  eorum  fieri,  qui  primi  possessionem  eorum  apprehenderint.  Item 
bello  capta,  et  insula  in  mari  enata,  et  gemmae,  lapilli,  margaritae  in  littoribus 
inventae  ejus  fiunt,  qui  primus  eorum  possessionem  nactus  est." — Dig.  xli.  2.  1.  i. 

"  Sed  quemadmodum,  cum  Theatram  commune  sit,  recte  tamen  dici  potest  ejus 
esse  eum  locum  quern  quisque  occuparit:  sic  in  urbe  mundove  communi  non  ad- 
versatur  jus  quo  minus  suum  qaidque  cujusque  sit." — Cicero,  De  Fin.  1.  iii.  c.  20. 

"Sunt  autem  privata  nulla  natura  :  sed  aut  veteri  occupatione,  ut  qui  quondam 
in  vacua  venerunt :  aut  victoria,  ut  qui  bello  potiti  sunt ;  aut  lege,  pactione,  con- 


198  PHILLIMORE    ON     INTERNATIONAL     LAW. 

CCXXIV.  But  Acquisition  itself  is  divided  into  two  classes ;  Original 
(acquisitio  originaria}  and  Derivative  (derivativa,  facto  liominis,  vet  facto 
legis). 

Under  the  former  head  may  be  classed  Acquisition  by  Occupation, 
Accession,  and  Prescription :  under  the  latter,  all  Acquisitions  by  Treaty 
r*9 19-1  or  Convention,  including  Transfer  *(traditio),  Grift,  Sale,  Ex- 
J  change,  Inheritance  by  Testament  or  Succession,  and  Acquisi- 
tions by  Conquest.(ra) 

CCXXV.  With  respect  to  Original  Acquisition,  we  have  first  to  con- 
sider under  this  head  the  title  which  a  nation  acquires  by  occupation. 
Discovery,  Use,  and  Settlement  are  all  ingredients  of  that  Occupation 
which  constitutes  a  valid  title  to  national  acquisitions. 

CCXXVI.  Discovery,  according  to  the  acknowledged  practice  of 
nations,  whether  originally  founded  upon  Comity  or  Strict  Right,  fur- 
nishes an  inchoate  title  to  possession  in  the  discoverer.  But  the  discoverer 
must  either,  in  the  first  instance,  be  fortified  by  the  public  authority  and 
by  a  commission  from  the  State  of  which  he  is  a  member,  or  his  discovery 
must  be  subsequently  (o)  adopted  by  that  State,  otherwise  it  does  not  fall, 
with  respect  to  the  protection  of  the  individual,  under  the  cognizance  of 
International  Law,  except  in  a  limited  degree;  that  is  to  say,  the  indi- 
vidual  has  a  natural  title  to  be  undisturbed  in  the  possession  of 
*the  territory  which  he  occupies,  as  against  all  third  Powers.  It 
will  be  a  question  belonging  to  the  Municipal  Law  of  his  own  country, 
whether  such  possessions  do  not  belong  to  her,  and  whether  he  must  not 
hold  them  under  her  authority  and  by  her  permission.  Such  would  be 
the  case  with  the  possessions  of  an  English  subject.  But,  as  far  as  In- 
ternational Law  is  concerned,  Vattel,  following  the  rules  of  natural  equity 
incorporated  into  Roman  Jurisprudence,  says  justly:  "Tous  les  hommes 
ont  un  droit  egal  aux  choses  qui  ne  sont  point  encore  tombees  dans  la 
propriete  de  quelqu'un;  et  ces  choses-la  appartiennent  au  premier  occu- 
pant. Lors  done  qu'une  nation  trouve  un  pays  inbabite  et  sans  maitre, 
elle  peut  legitimement  s'en  emparer;  et  apres  qu'elle  a  suffisamment 

ditione,  sort,  ex  quo  fit  ut  ager  Arpinas  Arpinatum  dicatnr:  Tusculanus  Tuscula- 
norum  :  similisque  est  privatorum  possessionum  descriptio,  ex  quo  qnia  suum 
cujusque  fit,  eorum,  quae  natura  fuerunt  communia,  quod  cuique  obtigit,  id  quis- 
que  teneat:  eo  si  qui  sibi  plus  appetet ;  violabit  jus  humanse  societatis." — De  Off. 
1.  i.  c.  8. 

(n)  The  effect  of  Christianity  upon  the  doctrines  of  possession  and  property,  or 
dominion,  was  as  beneficial  as  it  was  upon  all  other  doctrines  which  are  conserva- 
tive of  social  order  and  productive  of  human  happiness.  Ascribing  to  God  "  the 
•world  and  all  that  is  therein,"  it  nevertheless  consecrated  the  rights  of  Property ; 
and  though  for  a  season  the  first  professors  of  Christianity  had  their  goods  in  com- 
mon, and  no  private  property,  yet  this  was  an  accidental  arrangement,  growing  out  of 
the  particular  exigencies  of  a  particular  epoch,  and  ceasing  when  they  ceased.  The 
arrangement  moreover,  while  it  lasted,  was  voluntary ;  and  even  during  its  continu- 
ance a  respect  for  the  strict  rights  of  property  was  carefully  inculcated  and  pre- 
served.— See  Troplong,  De  1'Influence  du  Chritianisme  sur  le  Droit  Civil  des 
Remains,  p.  121. 

(o)  "  Ratihabitio  constituit  tuum  negotium,  quod  ab  initio  tuum  non  erat,  sed  tui 
contemplatione  gestum." — Dig.  iii.  5.  vi.  9.  De  Negotiis  gestis. 

"  Sed  etsi  non  vero  procurator!  solvam,  ratum  autem  habet  dominus,  quod  so- 
lutum  est,  liberatio  contingit:  rati  cnim  habitio  mandate  comparator." — Dig.  xlvi.  3. 
xii.  4.  de  Solut. :  cf.  Dig.  xliii.  16.  i.  14.  de  vi  et  de  vi  arm. 


RIGHT    OF    ACQUISITION.  199 

marque  sa  volonte  a  cet  egard,  un  autre  ne  peut  Ten  depouiller.  C'est 
ainsi  que  des  navigateurs,  allant  a  la  decouverte,  munis  d'une  commission 
de  leur  souverain,  et  rencontrant  des  lies,  ou  d'autres  terres  desertes,  en 
ont  pris  possession  au  nom  de  leur  nation :  et  communement  ce  titre  a 
ete  respecte,  pourvu  q'une  possession  reelle  1'ait  suivi  de  pres."(^>) 

CCXXVII.  In  the  various  discussions  which  took  place  between  the 
United  States  and  Great  Britain  with  respect  to  the  right  of  the  Oregon 
Territory,  the  title  resulting  from  discovery  was  attempted  to  he  pushed 
far  beyond  the  limits  of  this  doctrine,  even  to  the  extent  of  maintaining, 
that  the  first  discovery  by  an  uncommissioned  mercliant-sliip  gave  priority 
to  the  claims  of  America  upon  these  regions.  But  such  a  position  ap- 
pears opposed  to  all  the  authorities  upon  International  Law,  and  it  was 
steadily  denied  by  Great  Britain. 

CCXXVIII.  The  inchoate  title,  then,  must  in  the  first  place  be  forti- 
fied by  the  previous  commission  or  confirmed  by  the  subsequent  Ratifica- 
tion of  the  State  to  which  the  discoverer  belongs.  So  far,  according  to 
the  practice  of  nations,  strengthened  in  some  degree  by  the  principles  of 
natural  *Law  and  the  reason  of  the  thing,  the  fact  of  authorised  r-^j  <  -i 
discovery  may  be  said  to  found  the  right  to  occupy. 

« It  is  to  be  observed,  then,"  (Lord  Stowell  says,)  "  that  all  corporeal 
property  depends  very  much  upon  occupancy.  With  respect  to  the 
origin  of  property,  this  is  the  sole  foundation  :  quod  nullius  est  ratione 
naturali  occupanti  conceditur.  So  with  regard  to  transfer  also,  it  is 
universally  held,  in  all  systems  of  jurisprudence,  that  to  consummate  the 
right  of  property,  a  person  must  unite  the  right  of  the  thing  with  posses- 
sion. A  question  has  indeed  been  made  by  some  writers,  whether  this 
necessity  proceeds  from  what  they  call  the  natural  law  of  nations,  or  from 
that  which  is  only  conventional.  G-rotius  seems  to  consider  it  as  proceed- 
ing only  from  civil  institutions.  Puffendorf  and  Pothier  go  farther.  All 
concur,  however,  in  holding  it  to  be  a  necessary  principle  of  jurispru- 
dence, that,  to  complete  the  right  of  property,  the  right  to  the  thing  and 
the  possession  of  the  thing  itself  should  be  united  j  or,  according  to  the 
technical  expression,  borrowed  either  from  the  civil  law,  or,  as  Barbeyrac 
explains  it,  from  the  commentators  on  the  Canon  Law,  that  there  should 
be  both  the  jus  in  rem  and  the  Jus  in  re.  This  is  the  general  law  of 
property,  and  applies,  I  conceive,  no  less  to  the  right  of  territory  than 
to  other  rights.  Even  in  newly  discovered  countries,  where  a  title  is 
meant  to  be  established  for  the  first  time,  some  act  of  possession  is  usually 
done  and  proclaimed  as  a  notification  of  the  fact. 

"  In  transfer,  surely,  where  the  former  rights  of  others  are  to  be  super- 
seded and  extinguished,  it  cannot  be  less  necessary  that  such  a  change 
should  be  indicated  by  some  public  acts,  that  all  who  are  deeply  inter- 
ested in  the  event,  as  the  inhabitants  of  such  settlements,  may  be  in- 
formed under  whose  dominion  and  under  what  laws  they  are  to  live. 
This  I  conceive  to  be  the  general  propriety  of  principle  on  the  subject, 
and  no  less  applicable  to  cases  of  territory,  than  to  property  of  every 
other  description."^) 

(p]  "  Comment  une  Nation  s'approprie  un  Pays  desert." — Vattel,  torn.  i.  1.  i.  c. 
18.  s.  207. 
(q)  The  Fama,  5  Rob.  Adm.  Rep.  pp.  114—116. 


200          PHILLIMORE    ON    INTERNATIONAL    LAW. 

*CCXXIX.  The  next  step  is  to  consider  what  facts  constitute 
an  Occupation ;  what  are  the  signs  and  emblems  of  its  having 
taken  place :  for  it  is  a  clear  principle  of  International  Law,  that  the 
title  may  not  be  concealed,  that  the  intent  to  occupy  must  be  manifested 
by  some  overt  or  external  acts.  The  language  of  the  commentators  is 
clear  and  full  upon  this  point. 

"  Simul  discimus  quomodo  res  in  proprietatem  iverint :  non  animi 
actu  solo  ;  neque  enim  scire  alii  poterant  quid  alii  suum  esse  vellent,  ut 
eo  abstinerent;  et  idem  velle  plures  poterant:  sed  pacto  quodam  aut 
expresso,  ut  per  divisionem,  aut  tacito,  ut  per  occupationem.'Yr) 

Again  : 

"  Requiritur  autem  corporalis  quaedam  possessio  ad  dominium  adipis- 
cendurn."(s) 

And  again  : 

"  Prxter  animum  possessionem  desidero,  sed  qualemcunque,  quse  pro- 
bet,  me  nee  corpore  desiisse  possidere."(<) 

These  acts,  then,  by  the  common  consent  of  nations,  must  be  use  of 
and  settlement  in  the  discovered  territories. 

CCXXX.  By  a  Bull  promulgated  in  1454,  Pope  Nicholas  V.  gave  to 
the  crown  of  Portugal  the  Empire  of  Guinea,  and  the  power  to  subdue 
all  the  barbarous  nations  therein,  and  prohibited  the  access  of  all  other 
nations  there  to.  (u)  By  a  Bull  promulgated  in  1493,  Pope  Alexander  VI. 
granted  to  the  crown  of  Spain  all  lands  already,  or  hereafter  discovered, 
lying  to  the  west  and  south  of  the  Azores,  drawing  a  line  from  one  pole 
to  the  other,  a  hundred  leagues  from  the  west  of  the  Azores.  This  pon- 
tifical decision  was  subsequently  ratified  by  the  Treaty  of  Tordesillas  in 
1494,(v)  and  confirmed  by  Pope  Julius  in  1506.  These  papal  grants  to, 
r*9dfi!  an(^  arbitrations  between,  Spain  and  Portugal,  as  well  *as  the 
J  conventions  on  this  subject  between  the  lay  powers  themselves, 
were  always  utterly  disregarded  by  Great  Britain,  France,  and  Holland, 
though  not  altogether  abandoned  by  the  grantees,  till  their  futility  had 
been  demonstrated  by  the  result  of  many  sanguinary  wars.(w)  Vattel 
is  very  clear  upon  this  point :  "  Mais  c'est  une«question  de  savoir  si  une 
nation  peut  s'approprier  ainsi,  par  une  simple  prise  de  possession,  ded 
pays  qu'elle  n'occupe  pas  reellement,  et  s'en  reserver  de  cctte  maniere 
beaucoup  plus  qu'elle  n'est  capable  de  peupler  et  de  cultiver.  II  n'est 
pas  difficile  de  decider  qu'une  pareille  prevention  serait  absolument  con- 
traire  au  droit  naturel,  et  opposee  aux  vues  de  la  nature,  qui,  destinant 
toute  la  terre  aux  besoins  des  hommes  en  general,  ne  donne  a  chaque 
peuple  le  droit  de  s'approprier  un  pays,  que  pour  les  usages  qu'elle  en 
tire,  et  non  pour  empecher  que  d'autres  en  profitent.  Le  droit  des  gens 
ne  reconnaitra  done  la  propriele  et  la  souverainete  d'une  nation  que  sur 
les  pays  vides  qu'elle  aura  occupes  reellement  et  de  fait,  dans  lesquels 

>)  Grotius,  1.  ii.  c.  ii.  2,  s.  5.  (s)  Grotius,  1.  ii.  c.  viii.  s.  3. 

't)  Bynkershoek,  De  Dom.  Maris,  c.  i. 

u)  Giinther,  I  Kap.  6,  II  Kap.  2,  s.  10.  (v)  Martens,  Rec.  t.  i.  p.  372. 

(w)  Even  in  modern  times  Spain  has  claimed  the  north-western  coasts  of  America 
upon  the  sole  ground  of  having  first  discovered  them. 


RIGHT     OF    ACQUISITION.  201 

elle  aura  forme  un  etablissement,  ou  dont  elle  tirera  un  usage  actuel.(ce) 
En  effet,  lorsque  des  navigateurs  ont  rencontre  des  pays  deserts,  dans 
lesquels  ceux  des  autres  nations  avaient  dresse  en  passant  quelque  monu- 
ment, pour  marquer  leur  prise  de  possession,  ils  ne  se  sont  pas  plus  mis 
en  peine  de  cette  vaine  ceremonie  que  de  la  disposition  des  papes,  qui 
partagerent  une  grand  partie  du  monde  entre  les  couronnes  de  Castille  et 
de  Portugal. '\y}  Indeed,  writers  on  International  Law  agree  that  Use 
and  Settlement,  or,  in  other  words,  continuous  use,  are  indispensable  ele- 
ments of  occupation  properly  so  called.  The  mere  erection  of  crosses, 
^landmarks,  and  inscriptions  is  ineffectual  for  acquiring  or  main-  r+nt*-* 
taining  an  exclusive  title  to  a  country  of  which  no  real  use  is  L 
rnade.(z) 

CCXXXI.  But  when  occupation  by  Use  and  Settlement  have  followed 
upon  discovery,  it  is  a  clear  proposition  of  Law,  that  there  exists  that 
corporeal  possession  (corporalis  gusedam  possessio}(a\  detentio  corpo- 
raUs(bty  which  confers  an  exclusive  title  upon  the  occupant,  and  the 
Dominium  eminens,  as  Jurists  speak,  upon  the  country  whose  agent 
he  is. 

CCXXXII.  Next  arises  the  difficult  question,  as  to  how  much  terri- 
tory is  occupied  by  such  a  settlement  ?  to  what  extent  the  corporal  pos- 
session must  go,  in  order  to  give  a  title  to  more  than  is  actually  inha- 
bited ?(c) — what,  in  fact;  is  the  International  doctrine  of  contiguity  (ratio 
mcinitatis)  ? 

CCXXXIII.  Vattel  says,  that  when  several  nations  possess  and  occupy 
a  desert(rf)  and  unoccupied  land,  they  should  agree  upon  an  equitable 
partition  between  themselves ;  if  they  cannot  do  this,  each  nation  has 
a  right  of  empire  and  domain  *in  the  parts  where  they  first  rj(~ .„-, 
made  their  settlements.  This  remark,  however,  does  not  afford  L 
much  assistance  towards  a  solution  of  the  difficulty.(e) 

In  truth,  it  is  impossible  to  do  more  than  lay  down  a  broad  general 

(x)  "  Quam  est  hie  fortunatus  putandus,  cui  soli  vere  licet  omnia,  non  Quiritium, 
sed  sapientium  jure,  pro  suis  vindicare !  nee  civili  nexo,  sed  communi  lege  naturce, 
quae  vetat  ullam  rem  esse  cujusquam,  nisi  ejus  qui  tractare  et  uti  sciat." — Cicero, 
De  Republica,  1.  i.  c.  17. 

(y)  L.  i.  c.  xviii.  s.  208. 

(z)  Kliiber,  s.  126.    Wheaton,  Elem.  i.  c.  4. 

(a)  Grotius,  1.  ii.  c.  viii.  s.  3. 

(i)  "  Cultura  utique  et  cura  agri  possessionem  quam  maxime  indicat.  Neque 
enim  desidero,  vel  desideravi  unquam,  ut  tune  demum  videatur  quis  possidere,  si 
res  mobiles,  ad  instar  testudinum,  dorso  ferat  suo,  vel  rebus  immobilibus  incubet 
corpore,  ut  gallinae  solent  incubare  ovis.  Praeter  animum  possessionem  desidero, 
sed  qualemcunque,  quae  probet,  me  nee  corpore  desiisse  possidere  ....  Igitur 
quicquid  dicat  Titius,  quicquid  Maevius,  ex  possessione  jure  naturali  et  Gentium 
suspenditur  dominium,  nisi  pacta  dominium,  citra  possessionem,  defendant,  ut  de- 
fendit  jus  cujusque  civitatis  proprium." — Bynkershoek,  Op.  t.  vi.,  De  Dominio 
Maris,  pp.  360,  361. 

(c)  "  Et  adipiscimur  possessionem  corpore  et  animo,  neque  per  se  animo,  aut 
per  se  corpore.     Quod  autem  diximus  et  corpore  et  animo  acquirere  nos  debere 
possessionem,  non  utique  ita  accipiendum  est,  ut  qui  fundum  possidere  velit,  omnes 
glebas  circumambulet,  sed  sufficit  quamlibet  partem  ejus  fundi  introire,  dum  hac 
mente  et  cogitatione  sit,  uti  totam  fundum  usque  ad  terminum  velit  possidere." — 
Dig.  xli.  2.  3.  1. 

(d)  Ibid.  7.  5.  (e]  Vattel,  1.  ii.  s.  95. 

AUGUST,  1854. — 14 


202  PHILLIMORE     ON    INTERNATIONAL    LAW. 

rule  aided  in  some  degree  by  the  practice  of  nations,  to  be  applied  to 
each  case  as  it  may  arise,  and  modified  in  some  degree  by  any  particular 
circumstance  which  may  belong  to  it. 

CCXXXIV.  Some  natural  circumstances,  however,  seem  to  distin- 
guish the  rule  in  its  application  to  a  continent  or  an  island. 

With  respect  to  a  continent. — The  occupation  of  a  portion  of  the 
sea-coast  gives  a  right  to  the  usual  protecting  limit  at  sea,  which  is  held 
to  exist  in  all  old  countries.  The  right  of  dominion  would  extend  from 
the  portion  of  the  coast  actually  and  duly  occupied  inland,  so  far  as  the 
country  was  uninhabited,  and  so  far  as  it  might  fairly  be  considered  to 
have  the  occupied  sea-board  for  its  natural  outlet  to  other  nations. 

CCXXXV.  A  remarkable  instance  of  an  International  dispute,  aris- 
ing out  of  the  doctrine  of  contiguity,  is  afforded  by  the  discussion,  which 
arose  upon  the  interpretation  of  the  language  of  the  Treaty  of  Utrecht 
relating  to  the  cessions  of  France  and  England.  The  expressions  were 
as  follows  : 

"Dominus  Rex  Christianissimus  eodum  quo  pacis  prsesentis  Ratihabi- 
tiones  commutabuntur  die,  DominaD  Reginae  Magnae  Brittaniae  litteras, 
tabulasve  solennes  et  authenticas  tradendas  curabit,  quarum  vigore,  insu- 
lam  sancti  Christopliori,  per  subditos  Britannicos  sigillatim  dehinc  possi- 
dendam  ;  Novam  Scotiam  quoque,  sive  Acadiam  totam,  limitibus  suis 
antiquis  comprehensam,  ut  et  Portus  Regii  urbcm,  nunc  Annapolin  re- 
giam  dictam,  caeteraque  omnia  in  istis  regionibus  quse  ab  iisdem  terris 
et  insulis  pendent,  unacum  earundum  insularum,  terrarum,  et  locorum 
r*94.<n  doininio,  proprietate,  *possessione,  et  quocunque  jure  sive  per 
-I  pacta,  sive  alio  niodo  qusesito,  quod  Rex  Christianissimus, 
corona  Galliae,  aut  ejusdem  subditi  quicunque  ad  dictas  insulas,  ter- 
ras et  loca,  eorumque  incolas,  hactenus  habuerunt,  Reginas  Magnae 
Britanniae  ejusdemque  coronas  in  perpetuum  cedi  constabit  et  trans- 
ferri,  prout  eadem  omnia  nunc  cedit  ac  transfert  Rex  Christianissimus ; 
idque  tarn  amplis  modo  et  forma  ut  regis  Christianissiraisubditisin  dictis 
maribus,  sinubus,  aliisque  locis  ad  littora  Novae  Scotiae,  ea  nempe  quas 
Eurum  respiciunt,  intra  triginta  leucas,  incipiendo  ab  insula,  vulgo 
Sabl6  dicta,  eaque  inclusa  et  Africum  versus  pergendo,  omni  picatura  in 
posterium  interdicatur.(/) 

The  words  in  Italics  led  to  a  variety  of  demands  on  the  part  of  Great 
Britain,  with  respect  to  the  territories  included  under  these  words.  The 
French  replied:  "Les  mots  de  limitibus  et  de  comprehensam  n'ont 
jamais  ete  places  nullepart  pour  donner  de  1'extension. — La  phrase  (utef) 
que  citent  les  Commissaires  Anglois,  ne  donne  aucune  extension  a  la 
cession,  et  ne  peut  pas  operer  sans  le  dire,  et  par  une  vertu  secrete,  que 
«e  qui  n'etoit  pas  Acadie  avant  le  traite  soit  devenu  Acadie  apres  le 
traite;  ni  que  les  pays  circonvoisins  ou  les  confins  de  1' Acadie,  en  soient 
devenus  des  dependances ;  ni  que  1'accessoire  soit  six  eu  huit  fois  plus 
considerable  que  le  principal.  Jamais  on  ne  prouvera,  que  par  les 
appartenances  et  les  dependences  d'un  pays,  on  doive  entendre  ceux  qui 

(/)  Treaty  of  Utrecht,  1713  : — Schmauss,  Corpus  Jur.  Gent.  Academ.,  vol.  ii.  p. 
1332. 


RIGHT    OP    ACQUISITION.  203 

cn  sont  voisins.  Proximite  et  dependance  sont  deux  indees  diflerentes, 
distinctes;  leur  confusion  entraineroit  celle  des  limites  de  tous  les 
etats."(</)  The  dissentions  on  this  subject  were  the  principal  cause  of 
the  war  which  broke  out  in  1756.  A  similar  quarrel  arose  with  respect 
to  provinces  claimed  from  Germany  by  the  *Chambers  of  Ke- 
union  of  France.  By  the  following  words  in  the  12th  article  of 
the  Peace  of  Munster  (1648) — "Supremum  dominium,  jura  superiorita- 
tis  aliaqui  omnia  in  Episcopatus  Metensem,  Tallensem  et  Viradunen- 
sem,  urbesque  cognomines  eorumque  Episcopatuum  districtus,"  &c.,  it 
was  contended  that  the  throne  of  France  was  exempted  from  various 
feudal  liabilities  to  the  German  Empire,  to  which  these  bishoprics  had 
been  previously  subject,  but,  as  Gunther(A)  remarks  without  any  found- 
ation in  justice. 

The  United  States  of  America,  during  the  pendency  of  the  negoti- 
ations with  England,  with  respect  to  the  Oregon  boundary,  asserted, 
"  that  a  nation  discovering  a  country,  by  entering  the  mouth  of  its  prin- 
cipal river  at  the  sea-coast,  must  necessarily  be  allowed  to  claim  and 
hold  as  great  an  extent  of  the  interior  country  as  was  described  by  the 
course  of  such  principal  river  and  its  tributory  streams."  (i) 

But  this  proposition  was  strenuously  denied  by  Great  Britain  upon 
various  grounds  : — 1.  That  no  such  right  accrued  at  all  to  mere  dis- 
covery; 2.  Not  to  discovery  by  a  private  individual.  Great  Britain 
"was  yet  to  be  informed  (she  said)  under  what  principles  or  usage, 
among  the  nations  of  Europe,  his  having  first  entered  and  discovered  the 
mouth  of  the  River  Columbia,  admitting  this  to  have  been  the  fact,  was  to 
carry  after  it  such  a  portion  of  the  interior  country  as  was  alleged.  Great 
Britain  entered  her  dissent  from  such  a  claim ;  and  least  of  all  did  she 
admit  the  circumstance  of  a  merchant  vessel  of  the  United  States  hav- 
ing penetrated  the  coast  of  that  continent  at  Columbia  River,  was  to  be 
taken  to  extend  a  claim  in  favour  of  the  United  States  along  the  same 
coast,  both  above  and  below,  that  river,  over  latitudes  that  had  been  pre- 
viously discovered  and  explored  by  Great  Britain  herself,  in  expeditions 
*fitted  out  under  the  authority  and  with  the  resources  of  the  r^ri-i 
nation."(*) 

CCXXXVI.  If  the  circumstances  had  been  these,  viz.  that  an  actual 
settlement  had  been  grafted  upon  a  discovery  made  by  an  authorised 
public  officer  of  a  nation  at  the  mouth  of  a  river,  the  law  would  not  have 
been  unreasonably  applied. 

There  appears  to  be  no  variance  in  the  opinions  of  writers  upon  Inter- 
national Law  as  to  this  point.  They  all  agree  that  the  Right  of 
Occupation  incident  to  a  settlement,  such  as  has  been  described,  extends 
over  all  territory  actually  and  bona  fide  occupied,  over  all  that  is 
essential  to  the  real  use  of  the  settlers,  although  the  use  be  only  inchoate, 
and  not  fully  developed;  over  all,  in  fact,  that  is  necessary  for  the 

(ff)  Memoires  des  Commissaires  de  S.  M.  tres-Chre'tienne,  &c.,  torn.  i.  R.  1.  pp. 
54,  62,  183. 

(h)  Europ.  Volkerrechts,  vol.  ii.  p.  180.  See  also  Bolingbroke's  Letters  on  the 
Study  and  Use  of  History,  1.  vii.  p.  273.  (ed.  1752). 

(i)  State  Papers,  vol.  iii.  p.  506.  (k)  State  Papers,  vol.  xiii.  p.  509. 


204  PI1ILLTMORE     ON    INTERNATIONAL    LAW. 

integrity  and  security  of  the  possession,  such  necessity  being  measured 
by  the  principle  already  applied  to  the  parts  of  the  sea  adjacent  to  the 
coasts,  namely,  "ibifinitur  imperium,  ul>i  finitur  armorum  vis."  The 
application  of  the  principle  to  a  territorial  boundary  is,  of  course,  depen- 
dent in  each  case  upon  details  of  the  particular  topography. 

Martens,  dissussing  "jusqu'ou  s'etend  1'Occupation,"  writes  with  as 
much  precision  and  clearness  upon  the  point  as  the  subject  will  admit 
of.  "  Une  nation  qui  occupe  un  district  doit  etre  censee  avoir  occupe 
toutes  les  parties  vacantes  qui  le  composent ;  sa  propriete  s'etend  meme 
sur  les  places  qu'elle  laisse  incultes,  et  sur  celles  dont  elle  permet  1'usage 
a  tous.  Les  limites  de  son  territoire  sont  ou  naturelles  (telles  que  la 
mer,  les  rivieres,  les  eaux,  les  montagnes,  les  forets)  ou  artificielles  (telles 
que  des  barri&res  des  bornes,  des  poteaux,  etc.).  Les  montagnes,  les 
forets,  les  bruyeres,  etc.,  qui  separent  le  territoire  de  deux  nations,  sont 
censees  appartenir  a  chacune  des  deux  jusqu'a  la  ligne  qui  forme  le 
milieu,  a  moins  qu'on  ne  soit  convenu  de  regler  difieremment  les  limites, 
ou  de  les  neutraliser.  A  defaut  des  limites  certaines,  le  droit  d'une 
nation  d'exclure  des  nations  etrangeres  des  terres  ou  iles  voisines  ne 
*s'^ten(^  Pas  au-dela  du  district  qu'elle  cultive,  ou  duquel  du 
moins  elle  peut  prouver  1'occupation  ;  a  moins  que,  de  part  et 
d'autre,  1'on  ne  soit  convenu  de  ne  pas  occuper  certains  districts,  iles, 
etc.  en  les  declarant  neutres.'YA 

CCXXXVII.  This  middle  distance  mentioned  by  Martens  appears, 
in  cases  where  there  is  no  sea-coast  boundary,  to  be  recognised  in 
practice. 

In  the  negotiations  between  Spain  and  the  United  States  of  America 
repecting  the  western  boundary  of  Louisiana,  the  latter  country  laid 
down  with  accuracy  and  clearness  certain  propositions  of  law  upon  this 
subject,  and  which  fortify  the  opinion  advanced  in  the  foregoing  para- 
graphs. "  The  principles"  (America  said  on  this  occasion)  "  which  are 
applicable  to  the  case,  are  such  as  are  dictated  by  reason,  and  have  been 
adopted  in  practice  by  European  Powers  in  the  discoveries  and  acquisi- 
tions which  they  have  respectively  made  in  the  New  World.  They  are 
few,  simple,  intelligible,  and,  at  the  same  time,  founded  in  strict  justice. 
The  first  of  these  is,  that  when  any  European  nation  takes  possession  of 
any  extent  of  sea-coast,  that  possession  is  understood  as  extending  into 
the  interior  country,  to  the  sources  of  the  rivers  emptying  within  that 
coast,  to  all  their  branches,  and  the  country  they  cover,  and  to  give  it  a 
right,  in  exclusion  of  all  other  nations,  to  the  same.  (See  Memoire  de 
I'Amerique,  p.  116.).  It  is  evident  that  some  rule  or  principle  must 
govern  the  rights  of  European  powers  in  regard  to  each  other,  in  all 
such  cases  :  and  it  is  certain  that  none  can  be  adopted,  in  those  to  which 
it  applies,  more  reasonable  or  just  than  the  present  one.  Many  weighty 
considerations  show  the  propriety  of  it.  Nature  seems  to  have  destined 
a  range  of  territory  so  described  for  the  same  society ;  to  have  connected 
its  several  parts  together  by  the  ties  of  a  common  interest,  and  to  have 

(1)  Martens,  Droit  des  Gens,  1.  ii.  c.  1.  s.  38. 


RIGHT    OF    ACQUISITION.  205 

detached  them  *from  others.  If  this  principle  is  departed  from, 
it  must  be  by  attaching  to  such  discovery  and  possession  a  more 
enlarged  or  contracted  scope  of  acquisition  j  but  a  slight  attention  to 
the  subject  will  demonstrate  the  absurdity  of  either.  The  latter  would 
be  to  restrict  the  rights  of  an  European  power,  who  discovered  and  took 
possession  of  a  new  country,  to  the  spot  on  which  its  troops  or  settlements 
rested  ;  a  doctrine  which  has  been  totally  disclaimed  by  all  the  powers 
who  made  discoveries  and  acquired  possessions  in  America.  The  other 
extreme  would  be  equally  improper  j  that  is,  that  the  nation  who  made 
such  discovery  should,  in  all  cases,  be  entitled  to  the  whole  of  the 
territory  so  discovered.  In  the  case  of  an  island,  whose  extent  was 
seen,  which  might  be  soon  sailed  round  and  preserved  by  a  few  forts,  it 
may  apply  with  justice ;  but  in  that  of  a  continent  it  would  be  absolutely 
absurd.  Accordingly  we  find,  that  this  opposite  extreme  has  been 
equally  disclaimed  and  disavowed  by  the  doctrine  and  practice  of 
European  nations.  The  great  continent  of  America,  north  and  south, 
was  never  claimed  or  held  by  any  one  European  nation ;  nor  was  either 
great  section  of  it.  Their  pretensions  have  been  already  bounded  by 
more  moderate  and  rational  principles.  The  one  laid  down  has  obtained 
general  assent. 

"  This  principle  was  completely  established  in  the  controversy  which 
produced  the  war  of  1755.  Great  Britain  contended  that  she  had  a 
right,  founded  on  the  discovery  and  possession  of  such  territory,  to  define 
its  boundaries  by  given  latitudes  in  grants  to  individuals,  retaining  the 
sovereignty  to  herself,  from  sea  to  sea.  This  pretension  on  her  part  was 
opposed  by  Prance  and  Spain,  and  it  was  finally  abandoned  by  Great 
Britain  in  the  treaty  of  1763,  which  established  the  Mississippi  as  the 
western  boundary  of  her  possession.  It  was  opposed  by  France  and 
Spain,  on  the  principle  here  insisted  on,  which  of  course  gives  it  the 
highest  possible  sanction  in  the  present  case. 

"  The  second  is,  that  whenever  one  European  nation  *makes 
a  discovery  and  takes  possession  of  any  portion  of  that  contin- 
ent,(m)  and  another  afterwards  does  the  same  at  some  distance  from  it, 
where  the  boundary  between  them  is  not  determined  by  the  principle 
above  mentioned,  the  middle  distance  becomes  such  of  course.  The 
justice  and  propriety  of  this  rule  is  too  obvious  to  require  illustration. 

"  A  third  rule  is,  that  whenever  any  European  nation  has  thus  acquired 
a  right  to  any  portion  of  territory  on  that  continent,  that  right  can  never 
be  diminished  or  affected  by  any  other  power,  by  virtue  of  purchases 
made,  by  grants  or  conquests  of  the  natives  within  the  limits  thereof. 
It  is  believed  that  this  principle  has  been  admitted  and  acted  on 
invariably  since  the  discovery  of  America,  in  respect  to  their  possessions 
there,  by  all  the  European  powers.  It  is  particularly  illustrated  by  the 
stipulations  of  their  most  important  treaties  concerning  those  possessions 
and  the  practice  under  them,  viz.  the  Treaty  of  Utrecht  in  1713,  and 
that  of  Paris  in  1763.  In  conformity  with  the  10th  Article  of  the  first- 

(m)  As  to  the  character  of  the  early  acquisitions  made  by  the  East  India  Com- 
pany, see  Speech  on  Motion  relative  to  the  Speech  from  the  Throne ;  Burke's  Works, 
Tol.  iv.  p.  161  and  note. 


206  PHILLIMORE    ON    INTERNATIONAL    LAW. 

mentioned  Treaty,  the  boundary  between  Canada  and  Louisiana  on  the 
one  side,  and  the  Hudson  Bay  and  North-western  Companies  on  the 
other,  was  established  by  Commissaries,  by  a  line  to  commence  at  a 
Cape  or  Promontory  on  the  Ocean  in  58°  30'  north  latitude,  to  run 
thence  south-westwardly  to  latitude  49°  north  from  the  Equator,  and 
along  that  line  indefinitely  westward.  Since  that  time,  no  attempt  has 
been  made  to  extend  the  limits  of  Louisiana  or  Canada  to  the  north  of 
that  line  or  of  those  Companies  to  the  south  of  it,  by  purchase,  conquest, 
or  grants  from  the  Indians.  By  the  Treaty  of  Paris,  1763,  the  boundary 
between  the  present  United  States  and  Florida  and  Louisiana  was  estab- 
lished by  a  line  to  run  through  the  middle  of  the  Mississippi  from  its 
source  *to  the  river  Iberville,  and  through  that  river  to  the 
Ocean.  Since  that  time,  no  attempts  have  been  made,  by  those 
states  since  their  independence,  or  by  Great  Britain  before  it,  to  extend 
their  possessions  westward  of  that  line,  or  of  Spain  to  extend  hers  east- 
ward of  it,  by  virtue  of  such  acquisitions  made  of  the  Indians.  These 
facts  prove  incontestably  that  this  principle  is  not  only  just  in  itself, 
but  that  it  has  been  invariably  observed  by  all  the  powers  holding 
possessions  in  America,  in  all  questions  to  which  it  applies  relative  to 
those  possessions."(«) 

CCXXXVIII.  Here  it  should  be  remarked  that  in  those  instances  in 
which(o)  rivers  form  the  boundary  between  two  States,  all  nations  ap- 
pear to  have  acquiesced  in  the  wisdom  and  justice  of  the  rules  laid  down 
in  the  Roman  Law  upon  this  subject. 

CCXXXIX.  The  law  of  property  as  incident  to  Neighbourhood 
(vicinitas)  or  Contiguity  was  discussed  under  many  and  various  heads(j>) 
in  that  system  of  jurisprudence.  But  it  was  especially  treated  of  in  the 
following  cases  relating  to  fluvial  Accessions. 

Proceeding  upon  the  principle  that  the  river  itself  was  "  communis 
usus,"  but  that  the  bed  of  it  was  so  much  land  belonging  to  the  pro- 
prietors of  the  banks,  though  the  property  was  in  abeyance  while  covered 
with  water,  and  that  the  mid-channel  was  the  line  of  demarcation  between 
the  neighbours,  it  decided — 

1.  That  if  an  island  emerged  in  the  stream,  the  property  of  it  accrued 
to  the  owner  of  the  nearest  bank. 

2.  If  it  emerged  in  the   middle  of  the  stream,   the  property    was 
r*of;ftn  *divided  between  the  arcifinii,  as  the  opposite  proprietors  were 

)bJ  called. 

3.  If  the  channel  of  the  river  was  left  dry  (alveus  derdictus}  it  was 
also  equally  apportioned  between  the  owners  of  the  banks. 

4.  If  the  river  abandoned  its  new  channel,  a  difference  of  opinion 
existed  whether  that  channel  also  accrued  in  equal  moieties  to  the  owners 
of  the  banks,  or  whether  it  reverted  to  the  dominion  of  the  ancient  pro- 

(n\  State  Papers,  vol.  v.  pp.  327— 329. 

(o)  Vattel,  i.  c.  xxii.  s.  266  :  Des  Fleuves,  des  Rivieres  et  des  Lacs. 

(p)  Dig.  xliii.  t.  xii.  1.  i.  s.  7.  Fluminibus,  &c. 

Instit.  1.  ii.  t.  i.  ss.  20,  21.  De  Rerum  divis.  &c. 

Cod.  vii.  41.  De  Alluvionibus. 

Dig.  xli.  t.  1.  7.  1.  29. 1.  30.  1.  56.  1.  65.  De  Adquir.  rerum  domin. 


RIGHT     OF     ACQUISITION.  207 

prietor  (cujus  anteafuty.  The  former  opinion  was  given  by  Caius,  the 
latter  by  Pomponius,  and  both  were  incorporated  in  the  Digest ;  though 
the  former  only  appeared  in  the  Institutes  with  an  intimation  that  it  was 
doubtful  Law  (sed  vix  est  ud  id  obtineat},  as  indeed  it  appears  to  be, 
though  much  might  depend  upon  the  length  of  time  during  which  the 
new  channel  had  been  occupied. 

5.  All  alluvial  deposits  belonged  jure  gentium,  that  is,  by  natural 
law,  to  the  owner  of  the  bank  to  which  they  adhered. 

6.  If  the  violence  of  the  stream  (vis  fluminis)  had  detached  a  portion 
of  the  soil  from  one  bank  and  carried  it  over  to  the  other  side,  the  Law 
decided,  that  if  it  became  firmly  imbedded  so  as  to  be  irremovable,  it 
belonged  to  the  owner  of  that  side,  otherwise  it  might  be  vindicated  by 
its  old  proprietor. 

CCXL.  Modern  times  have  furnished  us  with  a  very  important  prac- 
tical commentary  upon  this  ancient  rule  of  Public  Law. 

In  the  case  of  the  Anna,  captured  by  a  British  privateer  and  brought 
into  the  High  Court  of  Admiralty  for  adjudication,  Lord  Stowell  made 
the  following  observations : — "  When  the  ship  was  brought  into  this 
country,  a  claim  was  given  of  a  grave  nature,  alleging  a  violation  of  the 
territory  of  the  United  States  of  America.  This  great  leading  fact  has 
very  properly  been  made  a  matter  of  much  discussion,  and  charts  have 
been  laid  before  the  Court  to  show  the  place  of  capture,  though  with 
different  representations  from  the  adverse  parties.  The  capture  was 
made,  it  seems,  at  the  mouth  of  the  River  Mississippi,  and,  as  it  is  con- 
tended in  *the  claim,  within  the  boundaries  of  the  United  States. 
We  all  know  that  the  rule  of  Law  on  this  subject  is,  terrse  domi- 
nium  Jinitur,  ubi  finitur  armorum  vis}  and  since  the  introduction  of 
fire-arms,  that  distance  has  usually  been  recognised  to  be  about  three 
miles  from  shore.  But  it  so  happens  in  this  case,  that  a  question  arises 
as  to  what  is  to  be  deemed  the  shore,  since  there  are  a  number  of  little 
mud-islands  composed  of  earth  and  trees  drifted  down  by  the  river,  which 
form  a  kind  of  portico  to  the  main  land.  It  is  contended  that  these  are 
not  to  be  considered  as  any  part  of  the  territory  of  America,  that  they 
are  a  sort  of  ( no  man's  land,'  not  of  consistency  enough  to  support  the 
purposes  of  life,  uninhabited,  and  resorted  to  only  for  shooting  and 
taking  birds'  nests.  It  is  argued  that  the  line  of  territory  is  to  be  taken 
from  the  Balise,  which  is  a  fort  raised  on  made  land  by  the  former  Span- 
ish possessors.  I  am  of  a  different  opinion ;  I  think  that  the  protection 
of  territory  is  to  be  reckoned  from  these  islands  j  and  that  they  are  the 
natural  appendages  of  the  coast  on  which  they  border,  and  from  which, 
indeed,  they  are  formed.  Their  elements  are  derived  immediately  from 
the  territory,  and  on  the  principle  of  alluvium  and  increment,  on  which 
so  much  is  to  be  found  in  the  books  of  Law,  quod  vis  Jluminis  de  tuo 
prsedio  detraxerit,  et  vicino  prsedio  attulerit,  palam  tuum  remanet,(q) 
even  if  it  had  been  carried  over  to  an  adjoining  territory.  Consider 
what  the  consequence  would  be  if  lands  of  this  description  were  not  con- 
sidered as  appendant  to  the  main  land,  and  as  comprised  within  the 

(q)  Inst.  1.  ii.  tit.  i.  s.  21. 


208  PHILLIMORE    ON    INTERNATIONAL    LAW. 

bounds  of  territory.  If  they  do  not  belong  to  the  United  States  of  Ame- 
rica, any  other  power  might  occupy  them;  they  might  be  embanked  and 
fortified.  What  a  thorn  would  this  be  in  the  side  of  America !  It  is 
physically  possible,  at  least,  that  they  might  be  so  occupied  by  European 
nations,  and  then  the  command  of  the  river  would  be  no  longer  in  Ame- 
r*ca>  *^u*  *n  suc^  set^emen*;s-  ^^e  possibility  of  such  a  conse- 
quence  is  enough  to  expose  the  fallacy  of  any  arguments  that 
are  addressed  to  show  that  these  islands  are  not  to  be  considered  as  part 
of  the  territory  of  America.  Whether  they  are  composed  of  earth  or 
solid  rock,  will  not  vary  the  right  of  dominion ;  for  the  right  of  dominion 
does  not  depend  upon  the  texture  of  the  soil.  I  am  of  opinion  that  the 
right  of  territory  is  to  be  reckoned  from  those  islands. "M 

It  was  not  without  reason  that  the  ancients  worshipped  the  God  Ter- 
minus on  account  of  the  fidelity  with  which  he  preserved  the  Rights  of 
Property  between  nations  as  well  as  individuals,  and  because  they  saw 
that  if  his  jurisdiction  were  to  cease,  quarrels  would  be  endless. 

"  Tu  populos  urbesque  et  regna  ingentia  finis."(«) 

The  River  and  the  Mountain  are  not  necessary  land-marks  ;(<)  there 
may  be,  and  often  are,  artificial  landmarks  wholly  irrespective  of  any 
natural  boundaries.  In  these  cases,  the  change  in  the  course  of  the 
river  has  no  effect  upon  the  property.  But  in  countries  which  have  no 
other  limit  than  a  river,  there  is  a  distinction  to  be  taken,  according  to 
G-rotius,  between  a  change  made  in  the  course  of  a  river  by  imperceptible 
r  _!__„_.  degrees,  and  a  change  made  all  at  once.  In  the  *former  case, 
J  the  river,  being  the  same,  continues  to  be  the  boundary ;  in  the 
latter,  the  river  leaving  its  old  channel  all  at  once,  it  is  no  longer 
reckoned  the  same :  the  old  bed  of  the  river  continues  to  be  the  boun- 
dary. 

CCXLL  The  nature  of  Occupation  is  not  confined  to  any  one  class  or 
description;  it  must  be  a  beneficial  use  and  occupation  (le  travail  d' ap- 
propriation ;(v)  )  but  it  may  be  by  a  settlement  for  the  purpose  of  pro- 
secuting a  particular  trade,  such  as  a  fishery,  or  for  working  mines,  or 
pastoral  occupations,  as  well  as  agriculture,  though  Bynkershoek  is  cor- 


(r)  The  Anna,  5  Robinson's  A.  R.  p.  373. 

(*)  "  Conveniunt  celebrantque  dapes  vicinia  simplex, 

Et  cantant  laudes,  Termine  sancte,  tuas. 
Tu  populos  urbesque  et  regna  ingentia  finis  ; 

Omnis  erit  sine  te  litigiosus  ager. 
Nulla  tibi  ambitio  est :  nullo  corrumpcris  auro, 
Legitima  servas  credita  rura  fide." 

Ovid.  Fasti. 

(t)  Grotius,  1.  ii.  c.  iii.  ss.  16,  17. 
Heffters,  s.  66 :  Grenzen  der  Staatsgebiete. 

Trait6  des  Limites  entre  la  Brasil  et  la  R6publique  Orientale  de  1'Uruguay, 
Annuaire  des  deux  Mondes,  1851-2.     Appendix,  p.  985. 
Kliiber,  s.  133. 
Giinther,  II.  Kap.  4. 

Rutherforth,  b.  ii.  c.  ix.  vii.  p.  491.  (ed  Baltimore,  1832.) 
(i>)  Bug.  Ortolan,  Dom.  Intern,  p.  37. 


I 


RIGHT    OP    ACQUISITION.  209 

rect  in  saying,  "cultura  utique  et  euro,  agri  possessionem  quam  maxime 
indicat."(x) 

Vattel  justly  maintains  that  the  pastoral  occupation  of  the  Arabs  en- 
titled them  to  the  exclusive  possession  of  the  regions  which  they  inhabit. 
"Si  les  Arabes  pasteurs  voulaient  eultiver  soigneusement  la  terre,  un 
moindre  espace  pourrait  leur  suffire.  Cependant,  aucune  autre  nation 
n'est  en  droit  de  les  resserrer,  a  moins  qu'elle  ne  manquat  absolument 
de  terre;  carenfin  Us  posse  dent  leur  pays;  ils  s'en  servent  a  leurmaniere; 
ils  en  tirent  un  usage  convenable  a  leur  genre  de  vie;  sur  lequel  ils  ne 
recoivent  la  loi  de  personne.(^) 

It  has  been  truly  observed  that,  "agreeably  to  this  rule,  the  North 
American  Indians  would  have  been  entitled  to  have  excluded  the  British 
fur-traders  from  their  hunting  grounds;  and  not  having  done  so,  the  lat- 
ter must  be  considered  as  having  been  admitted  to  a  joint  occupation  of  the 
territory,  and  thus  to  have  become  invested  with  a  similar  right  of  ex- 
cluding strangers  from  such  portions  of  the  country  as  their  own  indus- 
trial operations  pervade."(2) 

*CCXLII.  A  similar  settlement  was  founded  by  the  British  r^noA-i 
and  Russian  Fur  Companies  in  North  America. 

The  chief  portion  of  the  Oregon  Territory  is  valuable  solely  for  the 
fur-bearing  animals  which  it  produces.  Various  establishments  in  dif- 
ferent parts  of  this  territory  organised  a  system  for  securing  the  preser- 
vation of  these  animals,  and  exercised  for  these  purposes  a  control  over 
the  native  population.  This  was  rightly  contended  to  be  the  only  exer- 
cise of  proprietary  right  of  which  these  particular  regions  at  that  time 
were  susceptible;  and  to  mark  that  a  beneficial  use  was  made  of  the  whole 
territory  by  the  occupants. 

CCXL1IL  It  should  be  mentioned  that  the  practice  of  nations  in  both 
hemispheres  is  to  acknowledge,  in  favour  of  any  civilized  nation  making 
a  settlement  in  an  uncivilized  country,  a  right  of  pre-emption  of  the  con- 
tiguous territory  from  the  native  inhabitants  as  against  any  other  civilized 
nation. (a)  It  is  a  right  claimed  by  Great  Britain  with  respect  to  her 
Austrian  settlements,  especially  New  Zealand;  and  by  the  United  States 
of  America  with  respect  to  the  Indians  in  their  back  States. (J) 

CCXLIV.  The  Bulls  of  Alexander  VI.  reserved  from  the  grant  to 
Spain  all  lands  previously  acquired  by  any  Christian  nation.  It  is 
much  to  be  lamented,  both  for  the  influence  of  Christianity  and  the 
honour  of  Europe,  that  the  regard,  which  has  been  shown  of  late  years, 
for  the  rights  of  natives  in  those  countries,  into  which  the  overflowings 
of  European  population  have  been  poured,  was  not  exhibited  at  an  earlier 
period. 

It  may  indeed  be  justly  said,  that  the  Earth  was  intended  by  God  to 
supply  the  wants  of  the  general  family  of  mankind,  and  that  the  cultiva- 
tion of  the  soil  is  an  obligation  *imposed  upon  man :  and  it  seems 
a  fair  conclusion  from  these  premises,  that  when  the  population 
of  a  country  exceeds  the  means  of  support  which  that  country  can  afford, 

!x)  De  Dominio  Maris,  vol.  vi.  c.  i.  p.  360.  (y)  Vattel,  1.  ii.  s.  97. 

z)  The  Oregon  Question,  a  pamphlet  by  Edward  J.  Wallace,  1846,  p.  25. 
a)  Wallace's  Pamphlet,  p.  28.  (b)  Twiss,  Oregon,  p.  166.  \ 


210  PHILLIMORE    ON    INTERNATIONAL    LAW. 

they  have  a  right,  not  only  to  occupy  uninhabited  districts  (which,  in- 
deed, they  would  be  entitled  to  do  irrespectively  of  this  emergency),  but 
also  to  make  settlements  in  countries  capable  of  supporting  large  num- 
bers by  cultivation,  but  at  present  wandered  over  by  nomade  or  hunting 
tribes.  Vattel  goes  further,  and  gives  a  right  to  expel  by  force  the  in- 
habitants of  a  country,  who,  refusing  to  cultivate  the  soil,  live  entirely 
by  rapine  on  their  neighbours;  and  such  people,  like  the  modern  Bucca- 
neers in  the  Chinese  Seas,  may  lawfully  be  treated  as  pirates. 

CCXLV.  To  return,  however,  to  the  previous  question.  Vattel  says : 
"Ceux  qui  retiennent  encore  ce  genre  de  vie  oisif,  usurpent  plus  de  ter- 
rain qu'ils  n'en  auraient  besoin  avec  un  travail  honnete,  et  ils  ne  peuvent 
se  plaindre,  si  d'autres  nations,  plus  laborieuses  et  trop  resserrees,  vien- 
nent  en  occuper  une  partie.  Ainsi,  tandis  que  la  conquete  des  empires 
polices  du  Perou  et  de  Mexique  a  ete  une  usurpation  criante,  1'etablisse- 
ment  de  plusieurs  colonies  dans  le  continent  de  I'Amerique  septentrionale 
pouvait,  en  se  contenant  dans  de  justes  bornes,  n' avoir  rien  que  de  tres- 
legitime.  Les  peuples  de  ces  vastes  contrees  les  parcouraient  plutot 
qu'ils  ne  les  habitaient.'Yc) 

And  again :  "  On  ne  s'ecarte  done  point  des  vues  de  la  nature,  en  res- 
serrant  les  sauvages  dans  des  bornes  plus  etroites.  Cependant,  on  ne  peut 
que  louer  la  moderation  des  Puritains  Anglais,  qui  les  premiers  s'etab- 
lirent  dans  la  Nouvelle  Angleterre.  Quoique  munis  d'une  charte  de  leur 
souverain,  ils  achetSrent  des  sauvages  le  terrain  qu'ils  voulaient  occuper. 
r*9P9T  ^e  l°uable  exemple  fuit  suivi  par  *  Guillaujme  Penn  et  la  colonie 
-I  de  Quackers,  qu'il  conduisit  dans  la  Pennsylvanie."(o?) 

Though  it  is  to  be  hoped  that  this  comparison  in  favour  of  Great  Bri- 
tain is,  in  great  measure,  founded  in  justice,  it  cannot  be  denied  that 
she  is  not  without  her  share  in  the  guilt  of  forcibly  dispossessing  and 
exterminating  unoffending  inhabitants  of  countries  with  whom  she  had 
no  just  cause  of  war.  "The  patent  granted  by  King  Henry  VII.  of 
England  to  John  Cabot  and  his  sons  authorised  them  <to  seek  out  and 
discover  all  islands,  regions,  and  provinces  whatsoever  that  may  belong 
to  heathens  and  infidels/  and,  '  to  subdue,  occupy,  and  possess  these  ter- 
ritories, as  his  vassals  and  lieutenants/  In  the  same  manner  the  grant 
from  Queen  Elizabeth  to  Sir  Humphrey  Gilbert  empowers  him  'to  dis- 
cover such  remote  heathen  and  barbarous  lands,  countries,  and  territories, 
not  actually  possessed  of  any  Christian  prince  or  people,  and  to  hold, 
occupy,  and  enjoy  the  same,  with  all  their  commodities,  jurisdictions, 
and  royalties.'  "(e)  Most  truly  does  Mr.  Wheaton  say,  "  There  was 
one  thing  in  which  they"  (i.  e.  the  European  nations)  "all  agreed,  that 

(c)  Vattel,  t.  i.  1.  i.  c.  vii.  8.  81. 

(d)  Vattel,  t.  i.  1.  i.  c.  xviii.  s.  209. 

"He  that  brings  wealth  home  is  seldom  interrogated  by  what  means  it  was 
obtained.  This,  however,  is  one  of  those  modes  of  corruption  with  which  man- 
kind ought  always  to  struggle,  and  which  they  may  in  time  hope  to  overcome. 
There  is  reason  to  expect  that  as  the  world  is  more  enlightened,  policy  and 
morality  will  at  last  be  reconciled,  and  that  nations  will  learn  not  to  do  what 
they  would  not  suffer." — Thoughts  on  the  Transactions  relating  to  the  Falkland 
Islands,  1771,  by  Dr.  Johnson;  Works,  vol.  xii.  pp.  123,  124. 

(e)  Wheaton's  Elements  (English  ed.,)  pp.  209,  210. 


RIGHT     OP    ACQUISITION.  211 

of  almost  entirely  disregarding  the  right  of  the  native  inhabitants  of  these 
regions."(/) 

CCXLVI.  Nor  can  a  better  excuse  for  such  conduct  be  alleged  than 
the  detestable  doctrine,  which  it  is  melancholy  to  find  maintained  by 
some  modern  writers,  viz.  that  International  Law  is  confined  in  its  appli- 
cation to  European  territories.  A  denial  of  this  doctrine  formed 
part  of  an  earlier  chapter  of  this  work,(#)  and  need  not  be  more 
particularly  referred  to  in  this  place. 

It  must  be  remembered  that  Penn,  though  formally  commissioned  by 
his  sovereign,  acquired  his  territory  by  treaty  and  convention  with  the 
aboriginal  inhabitants. 

CCXLVII.  It  may  therefore  be  considered  as  a  maxim  of  International 
Law,  that  Discovery  alone,  though  accompanied  by  the  erection  of  some 
symbol  of  sovereignty,  if  unaccompanied  by  acts  of  a  de  facto  possession, 
does  not  constitute  a  national  acquisition. 

A  different  opinion  appears,  indeed,  to  have  been  entertained  by  the 
officers  of  Great  Britain  in  1774,  at  the  period  of  her  temporary  aban- 
donment of  the  Falkland  Islands.  But  the  doctrine  in  the  text  may  now 
be  said  to  be  very  generally  established. (A) 

CCXLVIII.  The  practice  of  nations  supports  the  doctrine  of  beneficial 
use  and  occupation.^}  In  a  dispute  which  arose  between  Great  Britain 
and  Spain  relative  to  the  subject  of  Nootka  Sound, (&)  Spain  claimed  a 
large  portion  of  the  northwestern  *coast  of  America,  upon  the 
ground  of  priority  of  discovery  and  of  long  possession,  confirmed 
by  the  8th  Article(Z)  of  the  Treaty  of  Utrecht  (1713).  The  British 
Government  resisted  their  claim  upon  the  ground  that  the  Earth  was 
the  heritage  of  all  mankind,  and  that  it  was  competent  to  each  State, 
through  the  means  of  occupation  and  cultivation,  to  appropriate  a  portion 
of  it.  The  dispute  was  ended  by  a  convention  between  the  two  powers, 
in  which  it  was  agreed,  that  it  was  lawful  for  the  respective  subjects  of 
each  to  navigate  freely  the  Pacific  and  the  Southern  Seas,  to  land  upon 
the  coasts  of  these  seas,  to  traffic  with  the  natives,  and  to  form  settle- 
ments; subject  to  certain  conditions  specified  in  the  convention. 

(/)  Wheaton's  Elements  (English  ed.)  pp.  209,  210. 

(ff)  Part  I.  Chapter  III. 

(A)  Eug.  Ortolan,  Dom.  Intern,  ]>.  49,  n.  2 ;  Moser's  Versuch,  Buch  5,  p.  541. 

Wenck.  t.  iii.  p.  815. 

Johnson's  Works,  vol.  xii. :  Thoughts  on  the  Falkland  Islands. 

Martens,  Rec.  t.  ii.  p.  1. 

Inscription  que  le  Lieutenant  Clayton,  commandant  lefort  Egmont,  fit  graver  sur  une 
plaque  de  plomb  attachee  aufort  Egmont  pour  conserves  les  droits  de  la  couronne  d'An- 
ffleterre  sur  les  Isles  de  Falckland  lorsque  les  Anglais  quitterent  le  dit  fort  le  22  Mai, 
1774: 

"  Qu'il  soit  notoire  a  toutes  les  nations  que  les  Isles  de  Falckland,  ainsi  que  ce 
Fort,  les  Magazins,  Quais,  Havres,  Bayes  et  Criques  qui  en  dependent,  appartien- 
nent  de  droit  uniquement  a  Sa  tres-sacre'e  Majeste  George  III.,  Roi  de  la  Grand- 
Bretagne,  de  France,  et  d'Irlande,  DeTenseur  de  la  Foi,  &c.  En  foi  de  quoi  cette 
Plaque  a  ete  fixe"e,  et  les  Pavilions  de  S.  M.  Britannique  de"ploye"s  et  arbore's, 
comme  une  marque  de  possession,  par  Samuel  Guillaume  Clayton,  Officier  com- 
mandant aux  Isles  de  Falckland,  le  22  Mai,  1 T74." 

(i)  Eug.  Ortolan,  Dom.  Int.  p.  48.  (A)  Wheaton,  Elem.  t.  i.  p.  162. 

(I)  Schmaus,  ii.  1422.     The  words  of  the  Article  are  very  vague. 


212         PHILLIMORE     ON     INTERNATIONAL     LAW. 

CCXLIX.  The  claims  of  the  United  States  of  North  America  upon 
the  Oregon  Territory  were,  as  has  been  shown,  chiefly  founded  upon 
priority  of  discovery,  both  by  their  own  subjects,  and  by  the  Spaniards, 
whose  pretensions  they  had  by  the  Treaty  of  1819  inherited.  The  British 
Government  denied  both  the  fact  of  prior  discovery,  and  the  enormous 
inference  sought  to  be  drawn  from  it;  and  most  clearly  asserted  at  the 
same  time  the  right  of  other  nations  to  occupy  vacant  portions  of  the 
earth  wheresoever  they  might  be.  The  temporary  arrangements  of 
1818  and  1827  were  merged  in  the  definitive  Treaty  of  Washington  in 
1846.(m) 


*CHAPTER    XIII. 

PRESCRIPTION. 

CCL.  The  second  mode  of  Original  Acquisition  is  effected  by  the  ope- 
ration of  time,  by  what  English  and  French  jurists  term  Prescription.(a\ 
In  order  to  arrive  at  any  solution  of  this  difficult  question  which  may  be 
at  all  satisfactory,  it  is  necessary  to  make  some  observations  upon  the 
place  which  Prescription  occupies  in  the  systems  both  of  Private  and 
Public  Law,  as  introductory  to  the  consideration  of  the  place  occupied 
by  the  same  doctrine  in  the  system  of  International  Jurisprudence. 

First,  as  to  Private  Law.  In  all  systems  of  private  jurisprudence, 
the  lapse  of  time  has  a  considerable  bearing  upon  the  question  of  pro- 
perty.^) There  is,  according  to  all  such  systems,  a  period  when  a  de 
facto  become  a  de  jure  ownership,  when  possession  becomes  property. 
The  nature  of  man,  the  reason  of  the  thing,  the  very  existence  of  society, 
demand  that  such  should  be  the  case.  The  Roman  Law  does  but  give 
r*9fifTI  exPressi°n  to  this  paramount  necessity  in  the  maxim,  *"  Vetustas 
J  quae  semper  pro  lege  tenetur."(c)  The  doctrine  of  Usucapio  ex- 
hibits the  first  trace  of  this  mode  of  acquisition  in  Roman  Jurispru- 
dence.^) According  to  this  doctrine,  the  possessor  justo  titulo  et  bond 

(m)  Wheaton,  El6m.  t.  i.  pp.  167,  168. 

(a)  Grotius,  1.  ii.  c.  iv. 

Puffendorf,  Jus  Nat.  et  Gent.  1.  iv.  c.  xii. 

Wolff,  Jus  Nat.  p.  iii.  c.  vii. 

Vattel,  1.  i.  c.  xvi.  8.  199.,  1.  ii.  c.  xi.  ss.  140,  151. 

(b)  Grotius  indeed  says  that  usucapio  is  the  creature  of  the  Civil  Law,  because 
nothing  is  done  by  time,  though  everything  is  done  in  time ;  but  this  seems  an. 
unworthy  subtlety,  and  is  inconsistent  with  other  passages  in  his  work. 

"  Le  Temps  qui  renferme  en  soi  1'idee  de  la  duree,  de  la  repetition,  et  de  la  suc- 
cession des  phenomenes,  un  des  agents  de  modification,  de  destruction  et  de  gene- 
ration pour  les  choses  physiques,  restera-t-il  sans  influence  sur  la  modification, 
sur  la  destruction  et  sur  la  generation  des  droits." — Domaine  Internal.,  par  E. 
Ortolan,  p.  98. 

(c)  Dig.j  de  aqua  et  acquae  pluviae  arcendae,  xxxix.  3.  2.:  see  also  Dig.  de  loc. 
et  itin.  publ.  xliii.  7.  3. 

Dig.,  de  aqua  quotidiana  et  sestiva,  43.  20'.  3.  4. :  "  Ductus  aquas  cuj'us  origo 
memoriam  excessit,  jure  constituti  loco  habetur." 

(d)  Which  the  Germans  call  Ersitzung.    In  the  XII  Tables  it  bore  the  name  of 
ususauctorilas,  i.  e.  usus  et  auctoritas. 


PRESCRIPTION.  213 

fide,  during  two  years  of  land,  and  during  one  year  of  movables,  which 
had  not  previously  belonged  to  him,  acquired  a  property  in  it  or  them. 
This  institution  was  originally  confined  to  the  prcedia  Italica  and  to  the 
Roman  citizen ;  but  the  Praetor  extended  it  to  the  fundi  provinciates, 
and  to  the  peregrinus,  under  the  appellation  of  prasscriptio  longi  temporis. 
Justinian,  who  destroyed  the  distinction  between  civil  and  natural  pro- 
perty, took  also  away  the  distinction  between  fundi  Italici  and  provin- 
ciates, blended  together  the  usucapio  and  the  preescriptio,  and  conferred 
not  only  a  right  of  possession  but  of  property  on  the  person  who  had  pos- 
sessed movables  for  three,  and  immovables  for  ten  years  inter praesentes, 
or  twenty  inter  absentes,  provided  that  the  subject-matter  had  been  capa- 
ble of  usucapio  or  prsescriptio,  and  there  had  been  Justus  titulus  and 
bona  fides. (e)  He  also-added  another  species  of  Prescriptive  Acquisition, 
the  *Preescriptio  XXX  vel  XL  annorum.  This  longissimi  tern- 
poris  possessio,  as  it  was  afterwards  called,  did  not  confer  property 
on  the  possessor  or  take  it  away  from  the  proprietor,  but  furnished  the 
possessor  with  a  defence  against  all  claimants,  and  that  though  there  had 
been  no  Justus  titulus.  Besides  these  classes  of  Prescription  measured 
by  a  definite  time,  was  the  indefinite  class,  Immemorial  Prescription 
(immemoriale  tempus,  possessio  vel  prsescriptio  immemorialis),  which 
was  called  "  adminiculum  juris  quo  quis  tuetur  possessionem}  guce  memo- 
riam  hominum  excedit"  (f\ 

This  kind  of  Prescription  was  available  when  the  origin  of  the  pos- 
session was  incapable  of  proof, — when  nobody  could  recollect  that  it 
had  belonged  to  another  person.  Such  a  Prescription  might  have  for 
its  object,  things  incapable  of  being  otherwise  acquired,  though  not  such 
things  as  were  by  nature  res  communes.  It  is  mentioned,  however,  with 
reference  to  only  three  heads  of  what  may  be  callled  public  law,  namely, 
1.  With  reference  to  public  ways  (vise, publicse,  privatae,  vicinales};  2. 
To  a  right  of  protection  from  the  rain-water  (aquae  pluviae  arcendae)', 
3.  The  right  relating  to  watercourses  (ductus  aquse}.(g)' 

CCLI.  The  passages  in  the  Romam  Law(A)  show  that  the  doctrine  of 
Immemorial  Prescription  was  applicable  only  to  those  few  cases,  in 

Puchta,  Instit.  ii.  s.  240. 

Savigny,  R.  R.  iv.  s.  195. 

Savigny,  Recht  des  Besitzes,  Abschnitt  i.  s.  2. 

Instit.  ii.  6.,  de  usucapionibus  et  longi  temporis  praescriptionibus. 

Dig.  xli.  3.,  de  usurpationibus  et  de  usucapionibus. — Code  31.,  de  uaucapione 
transformanda  et  de  sublata  differentia  rerum  mancipi  et  nee  mancipi. — 33,  de 
praescriptione  longi  temporis  decem  vel  viginti  annorum. — 34,  in  quibus  causis 
cessat  longi  temporis  praescriptio. — 35,  quibus  non  objicitur  longi  temporis  prae- 
scriptio.— 38,  nerei  dominicae  vel  templorum  vindicatio  temporis  praescriptione 
submoveatur. — 39,  de  praescriptione  xxx  vel  xl.  annorum. 

(e)  "  Par  la,  cessent  les  differences  entre  la  propriete  civile  et  la  propriete  natu- 
relle — entre  Vusucapion,  cette  patronne  de  1'Italie,  et  la  prescription,  cette  patronne 
du  genre  humain." — Troplong,  p.  139. 

Cod.  C.,  De  Usucapione  transformanda. 

(/)  Dig.,  de  aqua  quotid.  et  aest.,  xliii.  20.  3.  4.  x.  1.  v.  t.  40.  c.  26,  de  V.  S. 

Dig.,  de  aqu.  et  aqu.  pluv.  arc.,  xxxix.  3.  24. 

(ff)  See  note  (c). 

"Scaevola  respondit  solere  eos,  qui  juri  dicundi  praesunt,  tueri  ductus  aquae 
quibus  aucloritatem  vetustatis  daret,  tametsijus  non  probaretar." — Dig.  xxxix.  3.  26. 

(A)  Savigny,  R.  R.  iv.  s.  198. 


214  PHILLIMORE     ON     INTERNATIONAL    LAW. 

which  either  a  right  of  ^public  character,  or  an  exemption  from  the  obliga- 
tion of  such  a  right,  was  to  be  acquired.  It  is  not  surprising,  therefore, 
that  the  doctrine  should  have  occupied  a  very  subordinate  place  in 
Roman  jurisprudence,  or  the  reason  of  the  thing  being  considered,  that 
it  should  during  the  Middle  Ages  have  risen  into  an  institute  of  continual 
use  and  the  highest  importance. 

r«9fi81  *^a  '^e  ^rs^  *wo  °^  *ae  'nree  instances  specified  in  the  Digest, 
-I  Immemorial  Prescription  appears,  on  examination,  to  be  uncon- 
nected with  the  actual  possession,  but  in  the  last  to  be  necessarily  bound 
up  with  it;  and  this  condition  is  held  indispensable  in  later  jurispru- 
dence. 

CCLII.  The  Canon  Law(i')  contains  two  remarkable  instances  of  the 
application  of  Immemorial  Prescription.  In  the  year  1209  a  Papal 
Legate  forbad  the  Count  of  Toulouse  the  exercise  of  certain  regal  pri- 
vileges with  respect  to  the  imposition  of  taxes.  The  Pope,  at  the  re- 
quest of  the  Count,  declared  that  the  prohibition  extended  only  to  the 
taxes  arbitrarily  imposed,  and  not  to  those  which  were  equitable  ;  under 
which  class  were  to  be  reckoned,  those  which  had  been  permitted  by  the 
Emperor,  the  King,  or  the  Lateran  Council,  and  also  those  "  vel  ex  anti- 
quS,  consuetudine,  "  a  tempore  cujus  non  exstat  memoria,  introduc- 
ta.^' )  The  second  passage  relates  to  the  case  of  a  bishop,  who  claimed 
a  Prescriptive  Right  to  the  tithes  and  churches  within  the  see  of  ano- 
f*9fcn  ^ner  Bishop.  It  nas  been  seen  that,  according  *to  the  Roman 
-I  Law,  a  possession  for  three,  ten,  or  twenty  years,  with,  or  for 
thirty  years  without,  a  title,  furnished  the  possessor  with  a  defence  on 
the  ground  of  prsescriptio  or  usucapio  against  any  private  claimant. 
Churches  were,  generally  speaking,  privileged  against  any  Prescription 
less  than  forty  years ;  but  that  Prescription  against  the  Church  did  not 
require  a  title  provided  there  were  a  bona  fide.  In  the  case  of  the 
bishop,  however,  this  Prescription  of  forty  years,  it  was  said,  would  not 
avail,  because  it  was  contrary  to  the  Common  Law  :  "  ubi  tamen  e&t  ei 
Jus  commune  contrarium  vel  habetur  prsesumptio  contra  ipsum,  bona 
fides  non  sufficit :  sed  est  necessarius  titulus,  qui  possessori  causam  tri- 

(i)  Savigny,  R.  R.  iv.  s.  198. 

Eichhorn,  Kirchenrecht,  b.  vii.  c.  vii.  iv. :  "  Verjiihrung  gegen  die  Kirche." 

Suarez,  De  Le.  1.  viii.  c.  xxxv.  s.  21.  More  than  100  years,  however,  were 
held  necessary  to  establish  a  prescription  against  the  Church  of  Rome :  1.  ii.  t. 
xiii.  c.  ii.,  t.  vi. 

The  distinction  between  "  Usucapio"  and  "  Praescriptio"  is  thus  stated  by  one 
of  the  most  eminent  of  modern  canonists,  Schmalzgrueber  (Jus  Canonicum,  vol. 
ii.  p.  321.)  He  says: 

"  Distinctio  propria  et  primaria"  is — 

1.  Usucapio  is  cause. 

2.  Praescriptio  is  effect. 
"  Distinctio  ordinaria"  is — 

1.  "Usucapio"  concerns  "res  corporales"  and  requires  actual  possession, 

"  veram  possessionem." 

2.  "  Prsescriptio"  does  not,  but  is  content  with  quasi possessio. 

The  use  of  the  phrase  "  prescript  um  est  obligation!"  implies  opposition  to  a  for- 
mer proprietor. 

"  Praescripta  est  servitus,  praescripsi  rem"  implies  "  no  more  than  legitimate 
acquisition." 

(/)  X.  1.  v.  t.  40,  c.  26,  de  V.  S. 


PRESCRIPTION.  215 

buat  prsescribendi :  nisi  tanti  temporis  allegetur  prsecriptio,  cujus  con- 
trarii  memoria  non  exist at. "(k) 

CCLIII.  The  tendency  and  spirit  of  modern  legislation  and  jurispru- 
dence has  been  to  substitute,  in  Private  Law,  a  short  definite  period  of 
time  in  lieu  of  Immemorial  Prescription. 

In  England,  the  "  time  of  memory"  was,  at  a  very  early  period  of  her 
history  ascertained  by  the  law  to  commence  from  the  reign  of  a  particu- 
lar monarch ;  for  though  a  custom  was  said  to  be  good  when  it  had 
been  used  "  time  out  of  mind,"  or  "  for  a  time  when  the  memory  of 
man  runneth  not  to  the  contrary,"  the  phrase  referred  to  &  fixed  epoch, 
namely,  that  the  custom  was  in  use  before  the  beginning  of  the  reign  of 
Richard  I.  Recent  legislation  has  introduced  a  Prescription  limited  by 
a  specific  number  of  years,  which  it  has  substituted  for  the  doctrine  of 
immemorial  usage. (A 

*In  France(ra)  Immemorial  Prescription  has  been  abolished, 
and  a  fixed  period  substituted ;  and  in  Austria,  as  well  as  in 
Prussia  also,  though  in  this  country  very  long  periods  of    time  are 
required  in  certain  cases. (n) 

CCLIV.  Secondly,  as  to  Public  Law.  The  doctrine  of  Immemorial 
Prescription  is,  from  the  very  necessity  of  the  case,  indispensable(o)  in 
the  sytem  of  Public  Law.  Accordingly,  we  find  it  mentioned  more  than 
once  in  the  Constitutions  of  the  German  Empire,  and  as  a  mode  of 
acquiring  Public  Rights,  (/j) 

(k)  The  whole  passage  in  the  sixth  book  of  the  Decretal*  is  as  follows  :  "  Epis- 
copum,  qui  ecclesias  et  decimas,  quas  ab  eo  repetis,  proponit,  licet  in  tua  sint 
constitute  dioecesi,  se  legitime  praescripsisse,  adlegare  opportet,  cum  jus  commune 
contra  ipsum  facial,  hujusmodi  praescriptionis  titulum  et  probare  ;  nam  licet  ei  qni 
rem  praescribit  ecelesiasticam,  si  sibi  non  est  contrarium  jus  commune,  vel  contra 
earn  praesumtio  non  habeatur,  suffidat  bona  fides  ;  ubi  tamen,"  &c. — L.  ii.  t.  13.  cap. 
1.  De  Prescript  in  Vlto. 

(I)  Blackstone's  Commentaries  on  the  Laws  of  England,  b.  2.  c.  iii. 

The  rule  was  adopted  when,  by  the  Statute  of  Westminster  (3  Edward  I.  c. 
39),  the  reign  of  Richard  I.  was  made  the  time  of  limitation  in  a  writ  of  right. 

Statute  of  2  &  3  William  IV.  c.  Ixxi.,  An  Act  "  for  shortening  the  time  of  pre- 
scription in  certain  cases."  It  was  the  intention  of  this  Act  to  establish  practi- 
cally and  generally  a  30-years,  and  certainly  and  universally  a  60-years  prescrip- 
tion.— Stephen's  Comment,  b.  2.  t.  i.  c.  xxii. 

(m)  Code  Civil. 

"  690.  Les  servitudes  continues  et  apparentes  s'acqnierent  par  titre,  ou  par  la 
possession  de  trenteans."  (c.  688,  689.  706.,  s.  2177.  2232.  2281.) 

"691.  Les  servitudes  continues  non  apparentes,  et  les  servitudes  discontinue's 
apparentes,  ou  non  apparentes,  ne  peuvent  s'e"tablir  que  par  titres. 

"  La  possession  meme  imme'moriale  ne  suffit  pas  pour  les  e"tablir  ;  sans  cepend- 
ant  qu'on  puisse  attaquer  aujourd'hui  les  servitudes  de  cette  nature  deja  acquises 
par  la  possession,  dans  les  pays  ou  elles  peuvent  s'acquerir  de  cette  maniere."  (c. 
688,  689.) 

(n)  Six,  thirty,  forty  years  in  Austria. 

Thirty,  forty,  forty-four,  fifty  years  in  Prussia. 

Blume,  Detitches  Privatrecht,  s.  179. 

Savigny,  R.  R.  iv.  s.  198. 

(o)  "  Im  Offentlichen  Recht  ist  die  unvordenkliche  Zeit  durchaus  nicht  zu  ent- 
behren,  und  es  ist  ganz  gleichgultig,  wie  wir  Juristen  daruber  urtheilen,  sie  wird 
sich  unfehlbar  Bahn  brechen,  so  oft  eine  Veranlassung  dazu  erscheint." — Savig- 
ny, ib. 

(p)  Savigny,  ib.,  citing  Aurea  Bulla,  c.  viii.  s.  1  :  "A  tempore  cujus  contrarii 
hodie  non  existit  memoria."  See  too  a  Reichsabschied  of  1548  and  of  1576. 


216  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Savigny  illustrates  the  use  of  Immemorial  Prescription  in  matters  of 
Public  Law,  by  reference  to  the  condition  of  England  from  the  Revolu- 
tion of  1688  to  the  death  of  the  last  of  the  male  Stuarts,  the  Cardinal 
r*97in  °f  York,  in  1806.  During  *a  considerable  portion  of  this  inter- 
-I  val  it  might  have  been,  and  it  actually  was,  a  question  of  grave 
conscientious  doubt  to  many,  whether  the  change  of  dynasty  was  the 
effect  of  temperate  equity  and  wise  policy,  or  of  mere  violence  and  injus- 
tice :  and  if,  during  this  interval,  a  successful  invasion  had  reseated  the 
Stewarts  upon  the  British  throne,  their  right,  as  having  continued  unbro- 
ken, though  suspended  by  violence,  would  have  obtained  a  very  general 
recognition.  Who  can  point  out,  in  this  or  in  a  similar  instance,  the  exact 
year  when  the  doubt  merged  into  certainty  ?  and  yet  it  is  not  difficult 
to  describe  the  general  character  of  such  a  transition.  When  the  gener- 
ation had  passed  away  which  had  been  alive  during  the  former  state  of 
things;  when  the  convictions,  feelings,  and  the  interests  of  the  succeed- 
ing generation  had  become  identified  with  the  new  order  of  things;  then 
might  not  improperly  be  said  to  begin  the  Prescription  of  Public  Law. 
This  is,  in  principle,  very  much  the  same  as  the  Prescription  of  the  Pri- 
vate Law;  which,  indeed,  may  be  said  to  have  been  modelled  upon  the 
usage  of  Public  Law;  and  which  usage  grew  out  of  the  reason  of  the 
thing. 

CCLV.  Having  discussed  the  position  of  Prescription  in  the  systems 
of  Private  and  Public  Law,(2)  we  now  approach  the  consideration  of  a 
matter,  held  by  the  master  mind  of  Grotius  to  be  one  of  no  mean  diffi- 
culty, namely,  International  Prescription.  Does  there  arise  between 
nations,  as  between  individuals,  and  as  between  the  State  and  individuals, 
a  presumption  from  long  possession  of  a  territory  or  of  a  right  which 
must  be  considered  as  a  legitimate  source  of  International  Acquisition  ? 

In  seeking  an  answer  to  this  important  question,  it  is  necessary  to 
keep  clear  of  all  subtle  disquisitions  with  which  this  subject  has  been 
r*9791  Perplexed ;  whether,  for  instance,  it  be  the  *creature  of  Natural 
J  or  Civil  Law,  or  whether  it  must  always  be  founded  upon  a  pre- 
sumption of  voluntary  abandonment  or  dereliction  by  the  former  owner. 
Through  these  metaphysical  labyrinths  we  cannot  find  a  clue  for  ques- 
tions of  International  Jurisprudence.  The  effect  of  the  lapse  of  time 
upon  the  property  and  right  of  one  nation  relatively  to  another  is  the 
real  subject  for  our  consideration.  And  if  this  be  borne  steadily  in  mind 
it  will  be  found,  on  the  one  hand,  in  the  highest  degree  irrational  to  deny 
that  Prescription  is  a  legitimate  means  of  International  Acquisition  ;  and 
it  will,  on  the  other  hand,  be  found  both  inexpedient  and  impracticable 
to  attempt  to  define  the  exact  period(r)  within  which  it  can  be  said  to 

(<?)  "  'AXXa  fnfiv  ovf  CKSIVO  fy/ay  XeXrjyci',  ort  raj  KTTJO-SIJ  Kal  TO.;  JtJiaj,  Kal  raj  (coij/aj,  fiv 
iiriyivrjTai  jroXiij  xptfi/oj,  Kupi'aj  Kal  warpa'aj  aVavrsj  rival  vo^i^oviri."  IsOCr.,  Orat.  Archi- 

dam. 

(r)  Vattel,  1.  ii.  c.  xii.  s.  151,  expresses  a  wish  that  such  a  period  could  be  as- 
certained by  the  universal  consent  of  nations:  but  the  inexpediency  is  as  great  as 
the  impossibility  of  such  a  scheme. 

Grotius  refers  to  the  analogy  of  custom  :  "  Tempus  vero,  quo  ilia  consuetudo 
effectum  juris  accipit,  non  est  definitum  sed  arbitrarium,  quantum  satis  est  ut  con- 
currat  ad  significandum  consensum." — L.  ii.  c.  iv.  5,  s.  2. 


PRESCRIPTION.  217 

have  become  established — or,  in  other  words,  to  settle  the  precise  limi- 
tation of  time  which  gives  validity  to  the  title  of  national  possessions. 

And  therefore  to  the  question,  what  duration  or  lapse  of  time  is  re- 
quired by  the  canons  of  International  Jurisprudence  in  order  to  consti- 
tute a  lawful  possession  ?  it  is  enough  to  reply — First,  that  the  title  of 
nations  in  the  actual  enjoyment  and  peaceable  possession  of  their  terri- 
tory, howsoever  originally  obtained,  cannot  be  at  any  time  questioned  or 
disputed  :  Secondly,  that  a  forcible  and  unjust  seizure  of  a  country,  which 
the  inhabitants,  overpowered  for  the  moment  by  the  superiority  of  physi- 
cal force,  ineffectually  resist,  is  a  possession  which,  lacking  an  originally 
just  title,  requires  the  aid  of  time  to  cure  its  original  defect;  and  if  the 
nation  so  subjugated  succeed,  before  that  cure  has  been  effected,  in  shak- 
ing off  the  yoke,  it  is  legally  and  morally  entitled  to  resume  its  former 
position  in  the  community  of  states. 

*CCLVI.  This  is  called,  in  technical  language,  the  doctrine  of  r^n-ron 
Postli minium,  which  will  be  discussed  hereafter.  It  must,  how-  L 
ever,  be  remembered  here,  that  the  rights  of  Posiliminium  can  only  at- 
tach to  states  which  have  been,  previous  to  their  subjugation,  Indepen- 
dent Kingdoms.  It  was  therefore  with  justice  that  the  Allied  Powers, 
in  the  adjustment  of  the  relations  between  Belgium  and  Holland  after 
the  revolution  of  1830,  resisted  certain  Belgic  claims  founded  upon  an 
alleged  Postliminium,  on  the  ground  that  Belgium  had  never  been  an 
Independent  State,  had  never  been  "  sui  juris,"  and  could  therefore 
have  no  title  to  the  application  of  this  doctrine. 

CCLVII.  It  is  true  that  some  late  writers  on  the  Law  of  Nations  have 
denied  that  the  doctrine  of  Prescription  has  any  place  in  the  system  of 
International  Law.(s)  But  their  opinion  is  overwhelmed  by  authority, 
at  variance  with  practice  and  usage,  and  inconsistent  with  the  reason  of 
the  thing.  Grotius,  Heineccius,  Wolff,  Mably,  Vattel,  Rutherforth, 
Wheaton,  and  Burke,(£)  constitute  a  greatly  preponderating  *ar-  r^njA-i 
ray  of  authorities,  both  as  to  number  and  weight,  upon  the  op-  L 
posite  side. 

(»)  Kluber,  s.  6.  125. 

Martens,  1.  ii.  c.  iv.  s.  71. 

(t)  Grotius,  1.  ii.  c.  iv.  "De  derelictione  praesumpta.  et  earn  secuta  occupations  : 
et  quid  ab  usucapione  et  prescriptions  differat ;"  and  the  commentary  of  Heineccius 
thereupon  in  his  Praelect.  Acad.  in  Grot. 

Burke,  vide  post. 

Vattel,  1.  ii.  c.  xi. 

Wheaton,  Elem.  c.  iv.  s.  4.  t.  i.  p.  159. 

Bynkershoek  may,  I  think,  fairly  be  added  to  the  list.  Such  it  seems  to  me  is 
the  inference  from  the  following,  among  other  passages,  in  which  he  combats  the 
possibility  of  the  Dominion  of  the  Sea  being  acquired  by  Prescription  :  Sed  Hugo 
Grotius  (p.  386)  et  Vasquius  Grotio  repraesentatus  cap.  vn.  Maris  liberi,  docuerunt, 
longa  possessions  non  quaeri  marium  dominia.  Et  qui  potest  modus  acquirendi, 
qui  duntaxat  est  a  Jure  Civili,  diversos  principes  obligare  ?  Utitur  etiam  ea  ratione 
Grotius,  sed  bene  est,  quod  parcius,  quia  id  ipsum  rursus  concessit  (de  Jure  B.  et 
P.  lib.  ii.  c.  4.)  et  ita  nunc  vulgo  placet,  si  adsint,  quas  ille  persequitur,  tacitae  con- 
cessiones,  indicia,  praesumtiones  alique  adrninicula,  per  quae  ipsa  magis,  quam  per 
longi  temporis  capionem  extraneos  excludi  jus  fasque  esset.  At  vero,  per  me  licet, 
excute  quicquid  est  earum  praesumtionum,  et  si  quid  conjecturis  dandum,  reperies 
gentium  animos  adversus  praescriptionem  maris  omnimodo  militare  et  nihil  reliqui 
facere,  quominus  voluntatem  suam  enixe  declareni;  testantur  id  acta  populorum 

AUGUST,  1854. — 15 


218  PHILLIMORE     ON     INTERNATIONAL     LAW. 

The  practice  of  nations,  it  is  not  denied,  proceeds  upon  the  presump- 
tion of  Prescription,  whenever  there  is  scope  for  the  admission  of  that 
doctrine.  The  same  reason  of  the  thing  which  introduced  this  principle 
into  the  civil  jurisprudence  of  every  country,  in  order  to  quiet  possession, 
give  security  to  property,  stop  litigation, (a:)  and  prevent  a  state  of  con- 
tinued bad  feeling  and  hostility  between  individuals,  is  equally  powerful 
to  introduce  it,  for  the  same  purposes,  into  the  jurisprudence  which  regu- 
lates the  intercourse  of  one  society  with  another,  more  especially  when  it 
is  remembered  that  war  represents  between  States  litigation  between  In- 
dividuals.^) It  is  very  strange  that  the  fact,  that  most  nations  possess 
in  their  own  municipal  codes  a  positive  rule  of  law  upon  the  subject,  has 
been  used  as  an  argument  that  the  general  doctrine  has  no  foundation  in 
International  Law. 

It  is  admitted,  indeed,  that  Immemorial  Prescription  constitutes  a 
r*97^l  K00(^  ti'k  *0  national  possession ;  but  this  is  a  *perfectly  nuga- 
-I  tory  admission,  if,  as  it  is  sometimes  explained,  it  means  only 
that  a  State  which  has  acquired  originally  by  a  bad  title,  may  keep  pos- 
session of  its  acquisition  as  against  a  State  which  has  no  better  title.  If 
it  had  been  merely  alleged  that  the  exact  number  of  years  prescribed  by 
the  Roman  Law,  or  by  the  municipal  institute  of  any  particular  nation, 
as  necessary  to  constitute  ordinary  prescriptions,^)  is  not  binding  in  the 
affairs  of  nations,  the  position  would  be  true.  It  is,  perhaps,  the  diffi- 
culty attending  the  application  to  nations  of  this  technical  part  of  the 

publica,  testatur  quotidie  suo  quisque  exemplo,  dum,  quod  alius  mare  in  dominium 
suum  transcribit,  alius  eo  vel  invito  ingrediatur  et  altering  possessionem,  si  quam 
praetendat,  continua  navigatione  turbet." 

And  again  he  says:  "  Caeterum  ne  plura  addam,  Grotius  et  Vasquius  in  causa 
sunt,  namque  hi  maris  usucapionem  submoverunt  eis  rationibus  quas  meas  facere  non 
dubilem,  si  demas,  quae  ipsi  aiunt  de  natura  maris  prescription!  adversa,  utpote  re 
communi  ex  legibus  Naturae  et  Gentium,  et  quae  nee  in  bonis  esse  possit,  nee  pos- 
sideri,  nee  quasi  possideri,  nee  alienari,  et  caetera,  de  quibus  non  nihil  dicam  cap. 
ult." — De  Dominio  Maris  Praescriptio,  c.  vi. 

(x)  "  Vetustas  quae  semper  pro  lege  habetur  minuendorum  scilicet  litium  causa." 
— Dig.  xxxix.  3.  2.  De.  Acq.  Pluv. 

(y)  "  Bono  publico  usucapio  introducta  est,  ne  scilicet  quarundem  rerum  diu  et 
fere  semper  incerta  dominia  essent." — Dig.  xli.  t.  3.  1. 

(z)  Puffendorf,  under  the  title  "De  Usucapione,"  in  the  12th  chapter  of  his  4th 
Book,  discusses  the  application  of  the  doctrine  of  Prescription  to  nations.  His 
remarks  are  perspicuous  and  wise.  "Inter  hasce  (he  says  in  his  9th  section) 
discrepantes  sententias  id  quidem  liquidum  videtur :  quemadmodum  dominia  rerum 
pacis  causa  sunt  introducta;  ita  et  illud  ex  eodem  fonte  promanare,  quod  posses- 
sores  bonae  fidei  aliquando  sint  in  tuto  collocandi,  neve  ipsis  in  perpetuum  super 
sua  possessione  controversia  queat  moveri.  Quantum  autem  sit  illud  spatium, 
intra  quod  possessio  bonae  fidei  in  vim  dominii  evalescat,  precise  neque  natural! 
ratione,  neque  universali  gentium  consensu  determinatum  deprehenditur  ;  sed  arbi- 
tratu  boni  viri  non  citra  aliquam  latitudinem  definiendum  erit."  He  then  refers 
with  some  humour  to  the  vague  tests  of  prescriptive  poetry  proposed  in  Horace,  lib. 
2.  ep.  1.,  and  proceeds  : — "  In  designando  autem  hoc  tempore  ratio  habebitur  et 
antiqui  domini,  et  recentis  possessoris.  Illius  quidem,  ut  ne  mature  minis  a  per- 
sequenda  et  investiganda  sua  re  excludatur."  And  he  closes  the  section  with  say- 
ing : — "  Adeoque  cum  dominia  rerum  introducerentur,  id  quoque  pacis  causa  pla- 
cuisse,  ut  qui  aliquid  neque  vi,  neque  clam,  neque  precario,  suo  nomine  possideret, 
tantisper  dominus  praesumeretur,  quoad  ab  altero  contrarium  probaretur  ;  qui 
autem  per  longissimum  temporis  spatium,  per  quod  nemo  mediocriter  diligens  rem 
suam  negligere  creditur,  quid  bona  fide  possederit,  serum  petitorem  plane  posset 
repellere,  quia  non  citius  rem  suam  vindicatum  iverit." — De  Jure  Naturae  et  Gentium. 


PRESCRIPTION.  219 

doctrine,  which  has  induced  certain  writers  to  deny  it  altogether ;  but 
incorrectly,  for,  whatever  the  necessary  lapse  of  time  may  be,  there  un- 
questionably is  a  lapse  of  time  after  which  one  State  is  entitled  to  exclude 
every  other  from  the  property  of  which  it  is  in  actual  possession.  In 
other  words,  there  is  an  International  Prescription,  whether  it  be  called 
Immemorial  Possession,  or  by  any  other  name.  The  peace  of  the  world, 
*the  highest  and  best  interests  of  humanity,  the  fulfilment  of  r#n~a-i 
the  ends  for  which  States  exist,  require  that  this  doctrine  be  «- 
firmly  incorporated  in  the  Code  of  International  Law.  It  is  with  great 
force  of  reason  and  language  that  G-rotius,  repelling  the  contrary  propo- 
sition, observes :  "  Atque  id  si  admittimus,  sequi  videtur  maximum  in- 
commodum,  ut  controversiae  de  regnis  regnorumque  finibus  nullo  unquam 
tempore  extinguantur :  quod  non  tantum  ad  perturbandos  multorum 
animos  et  bella  serenda  pertinet,  sed  et  communi  gentium  sensui  repug- 
nat."(a) 

CCLVIII.  It  is  impossible  to  speak  with  greater  accuracy  upon  this 
very  delicate  subject ;  as  the  application  of  the  general  rule  must  of  ne- 
cessity be  greatly  modified  by  the  special  circumstances  of  each  particu- 
lar case.  Vattel's  remarks  upon  this  subject  are  clear  and  sensible  : — 

"La  Prescription  ne  pouvant  etre  fondee  que  sur  une  presomption 
absolue,  ou  sur  une  presomption  legitime,  elle  n'a  point  lieu  si  le  pro- 
prietaire  n'a  pas  veritablement  neglige  son  droit.  Cette  condition,  im- 
porte  trois  choses :  1°.  que  le  proprietaire  n'ait  point  a  alleguer  une 
ignorance  invincible,  soit  de  sa  part,  soit  de  celle  de  ses  auteurs ;  2°. 
qu'il  ne  puisse  justifier  son  silence  par  des  raisons  legitimes  et  solides  j 
3°.  qu'on  ait  neglige  son  droit,  ou  garde  le  silence  pendant  un  nombre 
considerable  d'annees ;  car  une  negligence  de  peu  d'annees,  incapable  de 
produire  la  confusion  et  de  mettre  dans  1'incertitude  les  droits  respectifs 
des  parties,  ne  suffit  pas  pour  fonder  ou  autoriser  une  presomption  d'aban- 
donnement.  II  est  impossible  de  determiner  en  droit  *naturel 
le  nombre  d'annees  requis  pour  fonder  la  Prescription.  Cela 
depend  de  la  nature  de  la  chose  dont  la  propriete,  est  disputee,  et  des 
circonstances.(i) 

(a)  L.  ii.  c.  iv.  s.  1. 

See,  too,  Wolff. 

And  so  Vattel :  "  Le  droit  de  succession  n'est  pas  toujours  primitivement  e"tabli 
par  la  nation  ;  il  peut  avoir  e"te  introduit  par  la  concession  d'un  autre  souverain, 
par  1'usurpation  meme.  Mais  lorsqu'il  est  appuye"  d'une  longue  possession,  le  peu- 
ple  est  cense"  y  consentir,  et  ce  consentement  tacite  le  legitime,  quoique  sa  source 
soit  vicieuse.  Il  pose  alors  sur  le  meme  fondement  seullegitime  et  inGbranlable,  auquel 
ilfaut  tonjours  revenir." — Vattel,  t.  i.  1.  i.  c.  v.  s.  59. 

(6)  "  De  ce  qui  est  requis  pour  fonder  la  Prescription  ordinaire."  Vattel,  Le 
Droit  des  Gens,  t.  i.  1.  ii.  c.  xi.  s.  142.  And  again  :  "  Mais  si  la  nation  prote'ge'e  ou 
soumis  h.  certaines  conditions  ne  resiste  point  aux  entreprises  de  celle  dont  elle  a 
recherche"  1'appui,  si  elle  n'y  fait  aucune  opposition,  si  elle  garde  un  profond  silence 
quand  elle  devrait  et  pourraitparler,  sa  patience,  apres  un  temps  considerable,  forme 
un  consentement  tacite  qui  16gitime  le  droit  de  1'usurpateur.  II  n'y  aurait  rien  de 
stable  parmi  les  hommes,  et  surtoutentre  les  nations,  si  une  longue  possession,  ac- 
compagne"e  du  silence  des  interesses,  ne  produisait  un  certain  droit.  Mais  il  faut 
bien  observer  que  le  silence,  pour  marquerun  consentement  tacite,  doite'tre  volon- 
taire.  Si  la  nation  infe"rieure  prouve  que  la  violence  et  la  crainte  ont  etouffe"  les 


220  PHILLIMORE     ON     INTERNATIONAL     LAW. 

But  that  Prescription  is  the  main  pillar  upon  which  the  security  of 
national  property  and  peace  depends,  is  as  incontrovertible  a  proposition 
as  that  the  property  and  peace  of  individuals  rests  upon  the  same  doc- 
trine.^) 

To  these  remarks  should  be  added  the  observation  of  a  living 
jurist : — (c?) 

"  The  general  consent  of  mankind  has  established  the  principle,  that 
long  and  uninterrupted  possession  by  one  nation  excludes  the  claim  of 
every  other.  Whether  this  general  consent  be  considered  as  an  implied 
contract  or  as  positive  law,  all  nations  are  equally  bound  by  it,  since  all 
are  parties  to  it;  since  none  can  safely  disregard  it  without  impugning 
its  own  title  to  its  possessions;  and  since  it  is  founded  upon  mutual 
utility,  and  tends  to  promote  the  general  welfare  of  mankind." 
I~*978T  *^n  one  °^  ^ose  treatises(e)  which  show  how  deeply  the  mind 
J  of  the  writer  was  imbued  with  the  principles  of  general  jurispru- 
dence, Mr.  Burke  uses  the  following  admirable  expressions : — 

"  If  it  were  permitted  to  argue  with  power,  might  one  not  ask  one  of 
these  gentlemen,  whether  it  would  not  be  more  natural,  instead  of  wan- 
tonly mooting  these  questions  concerning  their  property,  as  if  it  were  an 
exercise  in  law,  to  found  it  on  the  solid  rock  of  prescription  ;  the  sound- 
est, the  most  general,  the  most  recognised  title  between  man  and  man 
that  is  known  in  municipal  or  in  public  jurisprudence;  a  title  in  which 
not  arbitrary  institutions  but  the  eternal  order  of  things  gives  judgment; 
a  title  which  is  not  the  creature,  but  the  master  of  positive  law ;  a  title 
which,  though  not  fixed  in  its  term,  is  rooted  in.  its  principles  in  the  Law 
of  Nature  itself,  and  is  indeed  the  original  ground  of  all  known  pro- 
perty ;  for  all  property  in  soil  will  always  be  traced  back  to  that  source, 
and  will  rest  there" — "  these  gentlemen,  for  they  have  lawyers  amongst 
them,  know  as  well  as  I,  that  in  England  we  have  had  always  a  prescrip- 
tion or  limitation,  as  all  nations  have  against  each  other" — "  all  titles 
terminate  in  Prescription ;  in  which  (differently  from  Time,  in  the  fabu- 
lous instances)  the  son  devours  the  father,  and  the  last  Prescription  eats 
up  all  the  former."(/) 

temoignages  de  son  opposition,  on  ne  peut  rien  conclure  de  son  silence,  et  il  ne 
donne  aucun  droit  a  1'usurpateur." — Vattel,  t.  i.  c.  xvi.  s.  199. 

See  list  of  authorities  on  the  doctrine  of  International  Prescription  given  by 
Ompteda,  512.  s.  213,  Lit.  des  Volkerrechts. 

(c)  Vattel,  1.  ii.  c.  xi.  s.  142.  (d)  Wheaton,  vol.  i.  c.  iv.  s.  5.  p.  207. 

"  Es  liessen  sich  viele  Beispiele,  unter  andern  in  Deutschland  nachweisen,  wo  das 
Recht  der  Staatgewalt  nur  auf  langen  Besitzstand  gegriindet  1st  ohne  erweislichen 
Rechtstitel." — Heffters,  s.  69.  1. 

(e)  Vol.  ix.  p.  449.     Letter  to  R.  Burke,  Esq. 

See,  too,  vol.  ix.  p.  97.  Reform  of  Representation  in  the  House  of  Commons. 
"  Prescription  is  the  most  solid  of  all  titles,  not  only  to  property,  but  which  is  to 
secure  that  property,  to  Government."  And  vol.  v.  p.  274:  "  With  the  National 
Assembly  of  France  possession  is  nothing,  law  and  usage  are  nothing.  I  see  the 
National  Assembly  openly  reprobate  the  doctrine  of  Prescription,  which  one  of 
the  greatest  of  their  own  lawyers  (Domat)  tells  us,  with  great  truth,  is  part  of  the 
Law  of  Nature.  He  tells  us  that  the  positive  ascertainment  of  its  limits  and  its 
security  from  invasion  were  among  the  causes  for  which  civil  society  itself  was 
instituted." — Reflections  on  the  Revolution  in  France. 

(/)  The  Abbe"  de  Mably,  speaking  of  the  Treaty  of  the  Pyrenees  which  followed 


PRESCRIPTION.  221 

*CCLIX.  In  the  foregoing  observations,  the  foundatio^  of  [-#970-1 
International  Prescription  has  not  been  necessarily  laid  upon  L 
the  abandonment  or  dereliction  of  the  State,  to  whom  the  possession  for- 
merly belonged.  It  has  been  placed  upon  the  length  of  time  during 
which  the  possession  has  been  held  by  the  State  which  prescribes  for  it. 
It  is  important  to  establish  clearly  that  dereliction  does  not,  in  the  case 
of  nations,  necessarily  precede  prescriptive  acquisition.  Much  of  the 
uncertainty  and  confusion  in  the  writings  of  International  Jurists  upon 
this  subject  may  be  ascribed  to  the  want  of  firm  discrimination  and  clear 
statement  upon  this  point. 

Dereliction  or  voluntary  abandonment  by  the  original  possessor  may 
be  often  incapable  of  proof  between  nations  after  the  lapse  of  centuries 
of  adverse  possession;  whereas  the  proofs  of  prescriptive  possession  are 
simple  and  few.  They  are,  principally,  publicity,  continued  occupation, 
absence  of  interruption  (usurpatio},  aided  no  doubt  generally,  both 
morally  and  legally  speaking,  by  the  employment  of  labour  and  capital 
upon  the  possession  by  the  new  possessor  during  the  period  of  the 
silence,  or  the  passiveness  (inertia),  or  the  absence  of  any  attempt  to 
exercise  proprietary  rights,  by  the  former  possessor.  The  period  of  time, 
as  has  been  repeatedly  *said,  cannot  be  fixed  by  International 
Law  between  nations  as  it  may  be  by  Private  Law  between  indi- 
vidu'als:  it  must  depend  upon  variable  and  varying  circumstances;  but 
in  all  cases  these  proofs  would  be  required. 

Now  it  has  been  well  observed  by  a  recent  writer,(</)  that  in  cases 
where  the  dereliction  is  capable  of  proof,  the  new  possessor  may  found 
his  claim  upon  original  Occupation  alone,  without  calling  in  the  aid  of 
Prescription.  The  loss  of  the  former,  and  the  gain  of  the  later  posses- 
sor, are  distinct  and  separate  facts.  Whereas,  in  cases  of  Prescriptive 
Acquisition,  the  facts  are  necessarily  connected;  the  former  possessor 
loses,  because  the  new  one  gains. 

CCLX.  There  was  a  dispute  of  long  standing  between  France  and 
England  respecting  Santa  Lucia,  one  of  the  Antilles  Islands.  After  the 
Treaty  of  Aix-la-Chapelle  (1748),  the  matter  was  referred  to  the  decision 
of  certain  Commissioners,  and  it  was  the  subject  of  various  State  Papers(A) 
in  1751  and  1754.  The  French  negotiators  maintained,  that  though 

the  Treaty  of  Westphalia  (1659),  observes  : — "Le  Roi  de  France  proteste  centre 
toute  prescription  et  laps  de  temps,  au  sujet  du  Royaume  de  Navarre,  et  se  reserve 
la  facult^  d'en  faire  la  poursuite  par  voie  amiable,  de  meme  que  tous  les  autres 
droits  qu'il  pretend  lui  appartenir,  et  auxquels  lui  ou  ses  pre"decesseur3  n'ont  pas 
renonce".  (Traite"  de  Vervin,  rappelle"  par  le  Traite"  des  Pyrenees,  art.  23.  Traite" 
des  Pyrenees,  art.  89.)  Tous  les  auteurs  qui  ont  ecrit  sur  le  Droit  des  Gens,  con- 
viennent  que  la  prescription  rend  legitimes  les  droits  les  plus  Equivoques  dans 
leur  origine ;  et  ce  qui  prouve  la  sagesse  de  ce  principe,  c'est  qu'il  est  de 
1'interet  de  chaque  nation  en  particulier  de  1'adopter.  La  difficult*  consiste  a 
savoir,  comment  la  prescription  s'acquiert;  pourmoije  croirois  qu'ellene  peutetre 
e"tablie  que  par  le  silence  de  la  partie  le"see,  quand  elle  traite  avec  le  Prince  qui 
possede  son  bien,  ou  que  celuici  le  vend,  le  cede  et  1'aliene  en  quelque  autre  maniere. 
Le  silence  dans  ces  occasions  equivaut  a  un  consentement." — Droit  Public,  t.  i. 
p.  31. 

(g)  Monsieur  Eugene  Ortolan.  See  his  chapter  on  Prescription  Acquisitive,  in 
his  work  Du  Domaine  International  (Paris.  1851). 

(A)  Ib.  p.  111. 


222  PHILLIMORE     ON     INTERNATIONAL     LAW. 

the  English  had  established  themselves  in  1639,  they  had  been  driven 
out  or  massacred  by  the  Caribbees  in  1640,  and  they  had,  animo  et  facto 
and  sine  spe  redeundi,  abandoned  the  island ;  that  Santa  Lucia  being 
vacant,  the  French  had  seized  it  again  in  1650,  when  it  became  imme- 
diately, and  without  the  necessity  of  any  prescriptive  aid,  their  property. 
The  English  negotiators  contended  that  their  dereliction  had  been  the 
result  of  violence,  that  they  had  not  abandoned  the  island  sine  spe  rede- 
undi, and  that  it  was  not  competent  to  France  to  profit  by  this  act  of 
violence,  and  surreptitiously  obtain  the  territory  of  another  State;  and 
that  by  such  a  proceeding  no  dominium  could  accrue  to  them.  The 
principal  discussion  turned,  not  upon  the  nature  of  the  conditions  of 
r*9811  Prescr'ptive  Acquisition,  but  *upon  the  nature  of  the  conditions 
J  of  Voluntary  Dereliction,  by  which  the  rights  of  property  were 
lost,  and  the  possession  returned  to  the  class  of  vacant  and  unowned 
(a&ffTroTfc)  territories.^') 


"CHAPTER   XIV. 

DERIVATIVE    ACQUISITION. 

CCLXI.  We  now  enter  upon  the  second  kind  of  Acquisition,  viz., 
that  which  in  the  system  of  Private  Law  is  called  Derivative. 

Derivative  Acquisition(a)  is  said  to  be  that  which  takes  place  by  the 
act  of  another,  or  by  the  act  of  the  law  (acquisitio  derivativa,  vel  facto 
hominis,  vel  facto  legis).  In  this  system,  not  only  Individuals,  but  Cor- 
porations or  legal  persons,  are  enabled  to  acquire  and  to  alienate  rights 
of  property,  through  the  medium  of  a  representative,  as  minors  and 
lunatics  are  in  all  systems  of  jurisprudence  enabled  to  act  through  their 
guardian  or  tutor. 

Who  the  representative  of  the  corporation  may  be,  depends  upon  the 
constitution  of  this  legal  person.  But,  as  a  general  rule,  the  will  of  a 
corporation  is  expressed  not  only  by  the  unanimous  assent,  but  by  the 
assent  of  the  major  part  of  its  members.  The  rule  that  the  will  of  the 
corporation  may  be  collected  from  the  agreement  of  a  part  of  its  mem- 
bers seems  to  be  founded  in  Natural  Law,  as  otherwise  the  body  might 
r*983n  ^e  Prevented  fr°m  acting  at  all.(6)  *The  constructive  whole, 
•J  therefore,  is  held,  for  certain  purposes,  to  reside  in  a  part  only. 

Turning  from  the  system  of  Private  to  the  system  of  International 
Law,  we  find  that  it  is  competent  to  one  State  possessed  of  property  to 

(t)  Vide  post,  Extinction  of  Acquisition. 

(a)  Eugene  Ortolan,  p.  23. 
Heffters,  s.  71. 

(b)  "  —  quod  a  majore  parte  ordinis  salubriter  fuit  constitutum." — Cod.  x.  t.  xxii. 
46.     De  Decur. 

"  Quod  mayor  pars  curice  effecit,  pro  eo  habetur,  ac  si  omnes  egerint." — Eig.  1. 1. 19. 

Savigny,  R.  R.  s.  97. 

But  see  Burke,  vol.  vi.  p.  212 ;  Appeal  from  the  New  to  the  Old  Whigs. 


DERIVATIVE    ACQUISITION.  223 

alienate  it,  and  to  another  to  receive  the  alienated  portion.  So  far  the 
analogy  ,is  sound  between  the  State  and  the  Individual  or  the  Corpora- 
tion ;  the  rights  incident  to  a  proprietor  attach  in  both  cases.  But,  in 
the  case  of  the  State,  it  may  be  a  matter  of  theoretical  and  practical 
difficulty  to  ascertain  where  and  in  whom  the  power  of  acquiring  and 
alienating  is  lodged  ?  In  whom  what  has  been  happily  called  "  the  con- 
tracting capacity"(c)  of  the  nation  is  vested. (f?)  Whether  the  general 
procuration  of  the  State(e)  be  placed  in  the  hands  of  one  man,  or  of  a 
few,  or  of  a  majority  of  representatives  ?  The  solution  of  this  grave 
question  belongs  rather  to  the  province  of  Public  and  Constitutional, 
than  to  that  of  International  Law.f/")  It  has,  indeed,  been  discussed 
by  writers  on  International  Law,  especially  by  Grotiusfa)  and  Vattel  :(h\ 
but  both  those  writers  dealt,  on  this  as  on  other  occasions,  with  subjects 
which  belonged  to  the  sphere  of  the  Publicist  rather  than  of  the  Interna- 
tional Jurists,  (i) 

*CCLXII.  Grotius  divides  all  kingdoms  into  Patrimonial  and 
Usufructuary;  and  he  reckons  among  the  latter  all  kingdoms 
over  which  the  people  elected  a  Governor,  and  all  that  are  acquired  by 
treaty  or  marriage.  Patrimonial  kingdoms,  he  seems  to  think,  may  be 
alienated  by  their  rulers  without  the  sanction  of  the  people ;  but 
Usufructuary,  not  without  their  consent.  Whatever  countenance  this 
doctrine  might  have  derived  from  the  practice  and  principles  of  the  time 
in  which  Grotius  lived,  it  can  hardly  be  predicated  of  any  Christian, 
and  certainly  of  no  European  State(/c)  at  present  existing  in  the  world. 
Puffendorf,  indeed,  lays  it  down  as  law,  that  the  general  presumption  is 
against  the  power  of  the  sovereign  to  alienate,  without  the  consent  of 
his  subjects,  any  portion  of  the  public  property  or  domain  ;  and  the 
doctrine  is  distinctly  and  indignantly  repudiated  by  Vattel  ;(£)  neverthe- 

(c)  Burke,  vol.  ix.  p.  384:  Tracts  on  Popery  Laws,  c.  3.  in  fine. 

(d)  See  below,  the  Act  of  Renunciation  of  the   Grand  Duchy  of  Tuscany  by 
Leopold  II.,  on  his  accession  to  the  throne  of  Austria,  in  favour  of  his  second  son. — 
Martens,  Rec.  de  Traite"s,  vol.  iv.  p.  476.  (A.  D.  1790.) 

Eugene  Ortolan,  pp.  14,  35. 

Rutherforth,  Institutes  of  Natural  Law,  c.  viii. 

Savigny,  R.  R.  s.  140.  b.  iii.  p.  310. 

(e)  burke,  vol.  vi.  p.  212  :  Appeal  from  the  New  to  the  Old  Whigs. 
(/)  Grotius,  1.  ii.  c.  ri. 

Wheaton's  Elements,  pp.  102-3. 

Giinther,  pp.  11 — 77.  2  Buch,  II.  Kap. 

(g)  Grotius,  1.  ii.  c.  vi. :  De  acquisitione  derivative/,  facto  hominis,  ubi  de  alienatione 
imperil,  et  rerum  imperii. 

(h)  Vattel,  1.  i.  c.  xxi. :  De  V Alienation  des  biens  publics,  et  de  celle  d'une  partie  de 
FJEtat.  (i)  De  Jure  Belli,  1.  i.  c.  iii. — Heinec.  Praelec. 

(k)  "  Die  Eigenschaft  eines  Patrimonial-Staates  (das  heist,  dass  der  Regent  noch 
Eigenlhumsrecht  fiber  der  Staat  verfugen  kOnne)  ist  in  Europa  dnrch  Staatsgrund- 
gesetze  nirgend  festgesetz," — Kliiber,  s.  31. 

"  He  will  discover  that  when  Grotius  examines  the  subject  in  detail,  he  excludes 
every  case  of  patrimonial  governments.  The  fair  conclusion  to  be  drawn  from  it 
is  therefore  this,  that  there  is  no  such  thing  as  a  patrimonial  government." — Lord 
Grenville,  Debate  on  Blockade  of  Norway,  May  10,  1814.  Harnsard's  Parl  Deb. 

(I)  "  J'ai  ose"  cependant  m'e'carter  quelquefois  de  mon  guide,  et  m'opposer  h  ses 
sentiments ;  j'en  donnerai  ici  quelques  exemples.  M.  Wolf,  entrain6  peut-fetre  par 
la  foule  des  6crivains,  consacre  plusieurs  propositions  a  trailer  de  la  nature  des 
royaumes  patrimoniauz,  sans  rejeter  ou  corriger  cette  inde"e  injurieuse  a  I'humanite'. 


224  PIIILLIMORE    ON    INTERNATIONAL    LAW. 

r*9ftf;n  ^ess>  *a  miserable  attempt  was  made  in  1814,  to  palliate  the 
•J  guilt  of  the  forcible  annexation  of  Norway  to  Sweden  by  an 
appeal  to  the  authority  of  Grotius. 

CCLXIII.  So  far,  indeed,  as  respects  the  conduct  of  third  parties  in 
transactions  of  this  nature,  International  Law  may  claim  to  be  heard. 
How  far  the  right  of  Self-preservation  (which  includes  the  right  of  pre- 
venting the  undue  aggrandizement  of  any  particular  power)  justifies  the 
INTERVENTION  of  third  Powers,  will  be  hereafter  considered. 

The  rule  which,  accordingly  to  the  true  principles  of  International 
Law,  ought  to  be  binding  upon  all  nations  who  are,  as  it  were,  bystanders 
in  such  transactions,  is,  rigidly  and  punctiliously  to  abstain  from  inter- 
fering to  compel  by  force  either  part  of  the  nation,  whether  it  be  that 
which  wishes  to  alienate  or  that  which  refuses  to  be  alienated,  to  adopt 
the  one  course  or  the  other.  To  do  otherwise,  is  directly  to  violate  the 
most  sacred  principle  of  the  jurisprudence  of  which  we  are  treating,  to 
trample  in  the  most  offensive  way  upon  the  independence  of  a  nation,  by 
assuming  the  judicial  office  upon  the  nicest  and  most  vital  questions 
of  her  constitutional  law,  and  the  executive  office,  in  carrying  this 
unwarranted  and  illegal  decision  into  effect. 

CCLXIV.  When  in  1814  Norway  refused,  as  she  did,  by  the  actual 
and  constructive  voice  of  her  people,  to  be  annexed  to  Sweden,  the 
question  should  have  been  left,  according  to  the  spirit  and  letter  of  the 
law,  to  the  decision  of  arms  between  the  two  countries.  It  is  painful 
and  humiliating  to  an  Englishman(m)  to  think  that  this  abhorred  union, 

r*9RfiT  ^or  su  **  was  *a'  ^ne  time>  was  effected,  partly,  by  the  blockade 
J  of  a  British  fleet.  The  plea  that  such  a  union  formed  part  of 
the  provisions  of  a  general  treaty  of  peace,  which  had  for  its  object  the 
re-establishment  and  pacification  of  Europe,  after  years  of  bloodshed  and 
misery,  did  not  justify  the  grievous  injustice,  the  intrinsic  illegality  of 
this  act.  The  delivery  of  Genoa  to  Sardina,  after  that  republic  had 
yielded  to  our  arms  on  the  faith  of  its  national  independence  being  pre- 
served, was  as  wrongful  an  act,  accompanied  with  the  additional  sin  of 
violating  a  faith  specifically  pledged.  To  both  these  cases  the  expressions 

Je  n'admets  pas  meme  la  denomination,  que  je  trouve  e"galement  choquante,  im- 
propre,  et  dangereuse  dans  ses  effets,  dans  les  impressions  qu'elle  peut  donner  aux 
souverains  ;  et  je  me  flatte  qu'en  cela  j'obtiendrai  le  suffrage  de  tout  homme  qui 
aura  de  la  raison  et  du  sentiment  de  tout  vrai  citoyen." — Vattel,  PreTace. 

And  again,  1.  i.  c.  v. :  "  Nous  ne  voyons  point  en  Europe  de  grand  e"tat  qui  soit 
repute  alienable." 

In  another  part  of  his  work  he  limits  the  power  of  alienating  national  property 
as  follows: — "Le  corps  de  la  nation  de  peut  done  abandonner  une  province,  une 
ville,  ni  m6me  un  particulier  qui  en  fait  partie  a  moins  que  la  necessite  ne  1'y  con- 
traigne,  ou  que  les  plus  fortes  raisons,  prises  du  salut  public,  ne  lui  en  fassent  une 
loi." — L.  i.  c.  ii. 

Puffendorf,  De  Jur.  Nat.  et  Gent.  1.  viii.  c.  xii.  s.  1 — 3. 

Vattel,  1.  i.  c.  xxi.  s.  260  :  "II  ne  peut  aliener  les  biens  publics." 

(m)  See  the  Debates  in  both  Houses  of  Parliament  on  the  blockade  of  Norway, 
1814,  Pansard's  Parl.  Deb.,  especially  the  speeches  of  Lord  Grenville  and  Sir 
James  Mackintosh  which  contain  an  admirable  exposition  of  the  soundest  princi- 
ples of  International  Law.  Lord  Grenville  condemns  the  act  as  subversive  of 
public  morality,  as  opposed  to  the  authority  of  all  writers  upon  International  Law, 
as  justifying  in  principle  the  aggressions  of  France  for  the  preceding  twenty  years. 


DERIVATIVE    ACQUISITION.  225 

of  Martens — no  favourer  of  democracy — were  fully  applicable  :  "  II  en 
est  de  meme  de  V  impossibilite  morale  a  1'egard  des  dont  traites  1'accom- 
plissement  blesserait  les  droits  d'un  tiers. ''(TO) 

CCLXV.  Though  such  be  the  rule  of  law  to  which  nations,  being  in 
the  condition  of  third  parties  and  bystanders,  should  scrupulously  adhere, 
there  can  be  no  doubt  that  one  nation  may  by  its  proper  organ,  whatever 
that  may  be,  alienate,  and  that  another  nation  may  receive,  property.  It 
is,  moreover,  of  the  last  importance  to  remember,  that  a  nation  which 
allows  its  ruler,  either  in  his  own  person  or  through  his  minister,  to 
enter  into  negotiations  respecting  the  alienation  of  property  with  other 
nations,  must  be  held  to  have  consented  to  the  act  of  the  ruler ;  unless, 
indeed,  it  can  be  clearly  proved  that  the  other  contracting  party  was 
aware,  at  the  time,  that  "the  ruler  in  so  doing  was  transgressing  the 
fundamental  laws  of  his  State. (o) 

*CCLXVI.  This  is  the  universally  acknowledged  distinction  p^no^-i 
between  cases  of  internal  transactions  between  the  State  and  its  L 
Subjects,  and  of  international  transactions  between  the  State  and  other 
Nations.     The  reasons  which  support  this  leading  position  of  International 
Law  are  perspicuously  stated  by  Vattel : — 

"  II  est  neceasaire  que  les  nations  puissent  trailer  et  transiger  valide- 
ment  entre  elles,  sans  quoi  elles  n'auraient  aucun  moyen  de  terminer 
leurs  affaires,  de  se  mettre  dans  un  etat  tranquille  et  assure.  D'ou  il 
suit  que  quande  une  nation  a  cede  quelque  partie  de  ses  biens  a  une 
autre,  la  cession  doit  etre  tenue  pour  valide  et  irrevocable,  comme  elle 
1'est  in  effet,  en  vertu  de  la  notion  de  prapriete.  Ce  principe  ne  peut 
etre  ebranle  par  aucune  loi  fondamentale,  au  moyen  de  laquelle  une  nation 
pretendrait  s'oter  a  ellememe  le  pouvoir  d'aliener  ce  qui  lui  appartient. 
Car  ce  serait  vouloir  s'interdire  tout  contrat  avec  d'autres  peuples,  ou 
pretendre  les  tromper.  Avec  une  pareille  loi,  une  nation  ne  devrait 
jamais  traiter  de  ses  biens  :  si  la  necessite  1'y  oblige,  ou  si  son  propre 
avantage  1'y  determine,  des  qu'elle  entre  en  traite,  elle  renonce  a  sa  loi 
fondamentale.  On  ne  conteste  guere  a  la  nation  entiere  le  pouvoir 

(«)  Martens,  Des  Traites  non  obligatoires,  1.  ii.  c.  ii.  s.  53. 

(o)  "  A  1'occasion  du  meme  traite  de  Madrid,  dont  nous  venons  de  parler,  les 
notables  du  royaume  de  France,  assembles  a  Cognac,  apres  le  retour  du  roi,  con- 
clurent  tous  d'une  voix,  'que  son  autorite  ne  s'etendait  poit  jusqu'a  de"membrer  la 
couronne.  Le  traite  fut  declar6  nul,  comme  etant  contraire  a  la  loi  fondamen- 
tale du  royaume.  Et  ve"ritablement  il  6tait  fait  sans  pouroirs  suffisants;  la  loi 
refusait  formellemement  au  roi  le  pouvoir  de  demembrer  le  royaume ;  le  concours 
de  la  nation  y  etait  ne"cessaire,  et  elle  pouvait  donner  son  consentement  par  1'organe 
des  e'tats-gene'raux.  Charles  V.  ne  devait  point  relacher  son  prisonnier  avant  que 
ces  memes  e'tats-gene'raux  eussent  approuve"  le  traite" ;  ou  plutot,  usant  de  sa  victoire 
avec  plus  de  gene'rosite',  il  devait  imposer  des  conditions  moins  dures,  qui  eussent 
e"te"  au  pouvoir  de  Frangois  Ier  et  dont  ce  prince  n'eut  pu  se  de"dire  sans  hont.  Mais 
aujourd'hui  que  (ft  etats-geueraux  ne  s'assemblent  plus  en  France,  le  roi  demeure 
le  seul  organe  de  1'etat  envers  les  autres  puissances  ;  elles  sont  en  droitde  prendre 
sa  volonte"  pour  celle  de  la  France  entiere,  et  les  cessions  que  le  roi  pourrait  leur 
faire  demeureraint  valides,  en  vertu  du  consentement  tacite  par  lequel  la  nation  a 
remis  tout  pouvoir  entre  les  mains  de  son  roi,  pour  traiter  avec  elles.  S'il  en  e"tait 
autrement,  on  ne  pourrait  contracter  surement  avec  la  courrone  de  France.  Sou- 
vent,  pour  plus  de  precaution,  les  puissances  ont  demande  que  leurs  trace's  fussent 
enregistres  au  parlement  de  Paris ;  mais  aujourd'hui  cette  formalite  meme  ne  pa- 
rait  plus  en  usage." — Vattel,  1.  i.  c.  xxi.  s.  265. 


226  PHILLIMOEE    ON    INTERNATIONAL    LAW. 

d'aliener  ce  qui  lui  appartient ;  mais  on  demande  si  son  conducteur,  si 
*le  souverain  a  ce  pouvoir.  La  question  peut  etre  decidee  par 
-I  les  lois  fondamentales.  Les  lois  ne  disent-elles  rien  directement 
la-dessus  ?  Voici  notre  second  principe.  2°.  Si  la  nation  a  defere  la 
pleine  soverainete  a  son  conducteur,  si  elle  lui  a  commis  le  soin,  et  donne 
sans  reserve  le  droit  de  trailer  et  de  contracter  avec  les  autres  etats,  elle 
est  censee  1' avoir  revetu  de  tous  les  pouvoirs  necessaires  pour  contracter 
validement.  Le  prince  est  alors  1'organe  de  la  nation  ;  ce  qu'il  fait  est 
repute  fait  par  elle-meme;  et  bien  qu'il  ne  soit  pas  le  proprietaire  des 
Hens  publics,  il  les  aliene  validement  comme  etant  dflment  autorise."(^>) 

CCLXVII.  Upon  the  same  principle  it  is  held,  as  we  have  already 
stated,  that  when  foreign  governments  or  their  subjects  obtain  from  the 
de  facto  government  of  a  country,  by  treaty  or  otherwise,  a  part  of  the 
national  domain  of  confiscated  property,  if  the  sovereign  de  jure  be  re- 
stored, he  cannot  annul  this  contract  or  cession.  Whatever  power  he 
may  possess  to  annul  alienation  made  to  his  own  subjects,  the  acts  of  the 
de  facto  government,  though  it  was  that  of  a  usurper,  are  binding  upon 
him  as  to  all  international  transactions. (<?) 

There  can  be  no  doubt,  then,  that  a  State  may  make  acquisitions  by 
the  acceptance  of  property  transferred  to  it  from  another  State.  This 
transference  may  be  effected  in  as  great  a  variety  of  ways  in  the  case  of 
the  State,  as  in  the  case  of  the  individual. 

According  to  the  principles  of  Private  Law,  the  delivery  (traditio]  of 
r*28Ql  P083688'00^)  effected  a  change  of  ownership  *(dominii^,  the  de- 
-I  liverer  transfers  the  rights  which  he  had  enjoyed  to  the  re- 
ceiver, (s) 

The  validity  of  the  transaction  depends  upon  considerations  relating 
to— 

1.  The  person  delivering  or  transferring  the  property. 

2.  The  cause  of  the  transference. 

3.  The  form  and  manner  in  which  it  is  transferred. 

1.  The  person  (f)  must  have  the  will  and  the  power  to  alienate  the 
thing ;  and  the  alienee  the  will  and  power  to  receive  it. 

2.  The  cause(w)  must  be  lawful  and  just,  that  is  to  say,  it  must  be 

(p)  Vattel,  1.  i.  c.  xxi.  s.  262. 

{q)  Grotius,  1.  ii.  c.  xvi.  s.  16. 

Wheaton,  El.  vol.  i.  p.  102. 

Mably,  Droit  Pub.  t.  ii.  p.  271. 

(r)  "  Hae  quoque  res,  quse  traditione  nostra  finnt,  jure  gentium  nobis  acquirun- 
tur;  nihil  enim  est  tarn  conveniens  natural!  aequitati,  quam  voluntatem  domini 
volentis  rem  suam  in  alium  transferre  ratam  haberi." — Dig.  xli.  t.  i.  9.  3. 

"  Traditionibus  et  usucapionibus  dominia  rerum,  non  nudis  pactis  transferun- 
tnr."— Cod.  ii.  3.  20  (de  Pactis.) 

(«)  "  Quoties  autem  dominium  transfertur,  ad  eum  qui  accipit,  tale  transfertur, 
quale  fuit  apud  eum  qui  tradit." — Dig.  xli.  t.  i.  20,  1. 

(<)  "  Traditio  nihil  amplius  transferre  debet  vel  potest  ad  eum  qui  accipit, 
quam  est  apud  eum  qui  tradit.  Si  igitur  quis  dominium  in  fundo  habuit,  id  tra- 
dendo' transfert  ;  si  non  habuit,  ad  eum  qui  accipit  nihil  transfert." — Ib. 

"Nihil  autem  interest  utrum  ipse  dominus  tradat  alicui  rem,  an  voluntate  ejus 
alius  cui  ejus  rei  possessio  permissa  sit." — Inst.  ii.  t.  i.  42. 

(w)  "Nunquam  nuda  traditio  transfert  dominium,  sed  ita,  si  venditio,  aut  aliqua 
justa  causa,  prascesserit  propter  quam  traditio  sequeretur." — Dig.  xli.  t.  i.  31. 


DERIVATIVE     ACQUISITION.  227 

such  as  warrants  the  transference,  and  must  not  relate  to  a  class  of 
things  which  may  not  be  alienated. 

3.  The  form  and  manner(a;)  need  not  be  such  as  to  convey  the  thing 
by  corporal  seisin  :  overt  acts  indicating  the  intention  of  the  alienator,  or 
symbolical  delivery,  may  suffice. 

The  Treaty  of  Partition  in  1700,  which  parcelled  out  among  various 
European  nations  the  dominions  of  the  Spanish  crown  upon  the  demise 
of  the  wearer  of  it,  without  the  consent  either  of  him  or  of  the  nation, 
provided  by  its  ninth  article,  that  the  kingdom  of  Spain  should  never  be 
held  in  joint  possession  *with  that  of  France  or  Germany,  how- 
ever  it  might  have  accrued  to  either  of  these  countries — "  soil 
par  siiccession,  testament,  contrat  de  mariage,  donation,  echange,  cession, 
appel,  revolte,  ou  quelque  autre  voie  que  ce  soit."  And  in  that  part  of 
the  great  Treaty  of  Utrecht,  which  in  1713  was  concluded  between  France 
and  the  States-General,  it  was  provided  :  "  On  est  aussi  convenu  qu'aucune 
Province,  Ville,  Fort  ou  Place  desdits  Pai's-Bas  Espagnols,  ni  de  ceux 
qui  sont  cedez  par  Sa  Majeste  Tres-Chretienne  soient  jamais  eedez, 
transportez,  ni  donnez,  ni  puissent  echoir  a  la  Couronne  de  France,  ni  a 
aucun  Prince  ou  Princesse  de  la  Maison  ou  Ligne  de  France,  soit  en 
vertu  de  quelque  Don,  Vente,  Echange,  Convention  matrimoniale,  Suc- 
cession par  testament,  ou  ab  intestat,  ou  sous  quelqu' autre  Titre  que  ce 
puisse  etre,  ni  etre  mis  de  quelque  maniere  que  ce  soit  ou  pouvoir,  ni 
sous  1'autorite  du  Rio  Tres-Chretien,  ni  de  quelque  Prince  ou  Princesse 
de  la  Maison  ou  Ligne  de  France. "(y) 

These  provisions  contain  an  enumeration  of  every  conceivable  mode  of 
acquisition,  except  that  of  original  occupation,  discussed  in  the  foregoing 
chapters.  Many  historical  examples  may  be  cited  of  these  International 
titles  to  property. 

CCLXVIII.  The  exchange  of  territories,  and  especially  of  portions  of 
territories,  is  familiar  to  all  who  are  acquainted  with  European  History, 
and  with  the  provisons  of  the  principal  treaties.  Thus,  in  the  Treaty  of 
Nimeguen,  it  is  provided  by  Article  XIV.,  "pour  prevenir  toutes  les 
difficultes  que  les  enclaves  ont  causees  dans  1'execution  du  traite  d'  Aix- 
la-Chapelle,  et  retablir  pour  touj ours  la  bonne  intelligence  entre  les  deux 
couronnes,  il  a  ete  accorde  que  les  terres  enclavees  seront  echangees 
centre  d'autres  qui  se  trouveront  plus  proches  et  a  la  bienseance  de 
S.  M.  Catholique,"  &c.  The  islands  of  Sardinia  and  Sicily(z)  the 

(x)  Dig.  xlvi.  t.  iii.  79.     De  Solut. ;  xli.  t.  ii.  18,  2 ;  xxiii.  t.  iii.  43,  1.  de  j.  dot. 

"  Interdum  etiam  sine  traditione  nuda  voluntas  domini  sufficit  ad  rem  trans- 
ferendam ;  veluti  si  rem,  quam  commodavi  aut  locavi  tibi  aut  apud  te  deposui, 
vendidero  tibi ;  licet  enim  ex  ea  causa  tibi  earn  non  tradiderim,  eo  tamen  quod 
patior  eam  ex  causa  emtionis  apud  te  esse  tuam  efficio." — xli.  t.  i.  9,  5. 

(y)  Giinther,  vol.  ii.  p.  9.1. 

Art.  xiv.  Schmauss,  p.  1393. 

(z)  "  Reference  had  been  made  indeed  to  other  territories,  the  Germanic  body, 
the  States  of  Italy,  Sicily,  &c.,  where  cessions  were  frequent ;  but  they  were  only 
nominally  independent;  they  were  attached  to  larger  kingdoms;  they  were  the 
infirm  and  palsied  limbs  of  Europe,  and  became  invariably  the  first  points  of 
attack  in  every  war." — Hansard's  Debates  in  Parliament  on  the  Blockade  of  Nor- 
way, 1814,  Speech  of  Sir  James  Mackintosh. 


228  PHILLIMORE     ON    INTERNATIONAL    LAW. 


r*2Qn  f  Tuscany,  Parma,  and  Placentia,  were  continually 

-I  exchanged  with  each  other  in  the  multiplicity  of  entangled  nego- 
tiations which  intervened  between  the  Peace  of  Utrecht,  in  1713,  and 
the  Treaty  of  Aix-la-Chapelle,  in  1748.  By  the  6th  Article(a)  of  the 
Quadruple  Alliance  in  1720,  Philip  V.  of  Spain  renounced  the  reversion- 
ary title  on  Sicily,  conferred  on  him  by  the  Treaty  of  Utrecht,  and  re- 
ceived in  exchange  a  reversionary  title  to  Sardinia;  and  by  the  first 
article,  the  Duke  of  Savoy  made  a  reciprocal  renunciation  of  his  rights 
to  Sicily.  By  the  same  Treaty,  it  was  agreed  that  the  reversion  of  Tus- 
cany, Parma,  and  Placentia,  about  to  be  vacant  by  the  extinction  of  the 
male  descendants  of  the  Houses  of  Medici  and  Farnese,  should  be  de- 
clared male  fiefs  of  the  Empire,  and  the  investiture  be  conferred  by  the 
Emperor  on  the  eldest  son  of  the  second  wife  (Elizabeth  Farnese)  of 
Philip  V.(6) 

By  the  Treaty  of  Vienna,  in  1738,  Tuscany  was  given  in  reversionary 
exchange  for  the  Duchy  of  Lorraine,  to  the  Duke  of  that  province  ; 
Naples  and  Sicily  to  Don  Carlos,  the  son  of  Philip  V.  ;  while  Parma  and 
Placentia  were  ceded  to  the  Emperor. 

In  1790,  Leopold  II.,  succeeding  to  the  Austrian  Empire,  renounced 
by  a  formal  act  —  in  which  his  eldest  son  Francis  (afterwards  Emperor) 
joined  —  his  sovereignty  over  Tuscany,  in  favour  of  his  second  son,  Fer- 
dinand III.,  who  confirmed  the  act,  and  accepted  in  due  form  the  sove- 
reignty. These  "  actes,"  the  address  of  the  Regius  Advocatus,  and  the 
reply  of  the  Senate  to  the  Grand  Duke  through  their  organ  the  princi- 
r*9Q9i  Pal  Senator,  are  all  contained  in  what  is  called  in  *the  Diplomatic 
-J  Code  the  "  Acte  de  cession  du  G-raud-Duche,  de  Toscane  a  la 
branche  puisnee  de  la  maison  de  rAutriche."(c) 

By  the  last  Treaty  of  Vienna  (1814-15,  }(d}  these  Italian  provinces 
were  again  parcelled  out  among  various  Powers;  and  the  Stati  dei  Pre- 
sidi  (a  district  belonging  anciently  to  Sienna);  the  Island  of  Elba,  the 
Principality  of  Piombino  (over  which  the  Crown  of  Naples  had  exercised 
feudal  rights,)(e)  were  thrown  into  the  portion  of  Tuscany,  and  given  to 
the  Archduke  Ferdinand  of  Austria. 

CCLXIX.  Cessions(f)  of  territory  are  generally  consequent  on  war, 
and  the  subjects  of  provisions  in  the  Treaties  which  conclude  it;  but 
instances  are  to  be  found  of  their  taking  place  in  the  time  of  peace.  In 

(a)  Koch,  Hist,  des  Tr.  t.  i.  c.  xiii.  p.  236. 

(b)  Koch,  t.  i.  c.  XT.  p.  256. 

(c)  Martens,  Rec.  de  Traite*s,  torn.  iv.  (1785-90),  p.  476:  "Acte  de  renonciation 
de  S.  M.  I.  et  R.  Leopold  II.,  par  rapport  au  Grand-Duche*  de  Toscane,  en  faveur 
de  S.  A.  R.  1'Archiduc  Ferdinand,  son  second  fils,  et  des   decendans  males  de 
celui-ci,  ensemble  avec  1'acte  d'investiture  du  Grand-Duche"  et  la  cession  pl6niere 
de  ce  pays,  tant  de  la  part  de  S.  M.  I.  et  R.  A.  Leopold  II.,  que  de  S.  A.  R. 
1'Archiduc  Fran9ois  (aujourd'hui  Empereur,)  a  la  Secundo-geniture,  en  date  de 
Vienne  le  21  Juill.  1790,  ainsi  que  1'acceptation  de  S.  A.  R.  le  Grand-Due  Ferdi- 
nand III.,  de  la  confirmation,  des  loix,  statuts,  &c.  du  Grand-Duch6  en  date  du  22 
FeV.  1791,  et  de  1'homage  prete'  au  Grand-Due,  le  16  Mars,  1791." 

(d)  Koch,  vol.  iii.  c.  xli.  p.  493. 

(e)  I.  e.  la  suzerainete,  relating  to  le  droit  feodal,  distinguished  from  la  suzerainetS 
which  relates  to  droit  politique. 

(/)  Giinther,  vol.  ii.  p.  94  (Abtretung.) 


DERIVATIVE    ACQUISITION.  229 

1777,  Portugal  ceded  to  Spain  the  islands  of  Annobon  and  Fernando  del 
Po,  in  order  to  facilitate  the  slave  trade  of  Spain  with  the  coast  of 
Africa.  In  1784,  France  ceded  to  Sweden  the  islands  of  St.  Bartholo- 
mew in  the  West  Indies,  in  return  for  the  free  use  of  the  harbour  of 
Gottenburg,  and  certain  other  commercial  advantages.  The  most  recent 
instance  of  cession  is  afforded  by  the  convention  in  1850,  between  Great 
Britain  and  Denmark,  whereby  Denmark  ceded  to  Great  Britain,  in  con- 
sideration of  the  sum  of  ten  thousand  pounds,  all  the  *posses- 
sions  of  the  Danish  Crown  on  the  Gold  Coast,  or  Coast  of 
Guinea,  in  Africa.^) 

CCLXX.  Gifts  of  territory  were  not  uncommon  in  earlier  times;  for, 
not  to  mention  the  handsome  presents,  already  adverted  to,  of  different 
parts  of  the  globe  made-  by  the  Pope  to  Spain  and  Portugal,  John 
XVIII.,  in  1004,  offered  the  island  of  Sardinia  to  whomsoever  would 
take  it  from  the  Saracens ;  and  Boniface  VIII., (A)  in  1297,  bestowed 
the  same  island,  together  with  Corsica,  upon  James  II.  of  Arragon.  In 
1485,  Queen  Charlotte  of  Cyprus(t)  gave  that  island  to  Duke  Charles  I. 
of  Savoy ;  and,  in  1530,  the  Emperor  Charles  V.(&)  gave  Malta  to  the 
Knights  of  St.  John.  We  may  pass  over  the  earlier  alleged  donations 
of  Pepin  and  Charlemagne  to  the  Roman  See,  and  the  acquisitions  of  the 
French  Crown  by  gift,  such  as  the  province  of  Dauphine  in  1349. 

CCLXXI.  The  history  of  Louisiana  furnishes  a  more  recent  and  very 
remarkable  instance  of  the  practical  application  of  some  of  the  foregoing 
modes  of  acquisition  by  independent  nations. 

By  a  secret  conventional}  (never,  it  is  said,  yet  printed)  between  the 
Courts  of  Versailles  and  Madrid,  on  the  2d  of  November,  1762,  New 
Orleans,  together  with  that  part  of  Louisiana  which  lies  on  the  western 
side  of  the  Mississippi,  was  ceded  to  Spain.  The  object  of  this  cession 
was  to  indemnify  Spain  for  the  loss  of  Florida,  which,  by  the  prelimina- 
ries of  the  memorable  Treaty  of  Paris, (m)  she  had  given  up  to  Great 
Britain ;  and,  in  spite  of  the  remonstrances  of  *the  French  inhab- 
itants  of  Louisiana,  Spain  took  complete  possession  of  this  pro- 
vince  in  1769. 

By  a  secret  Treaty  concluded  between  the  French  Republic  and  Spain, 
at  Saint  Ildefonse,  on  the  1st  of  October,  1800,  Spain  engaged  to  retro- 
cede  to  France, — six  months  after  the  .fulfilment  of  certain  conditions 
relative  to  the  Duchy  of  Parma,  in  favour  of  the  daughter  of  the  King 
of  Spain, — the  province  of  Louisiana  as  at  that  time  possessed  by  Spain. 

As  soon  as  this  Treaty  was  made  known,  Great  Britain  and  the  United 
States  took  alarm,  and  determined  to  oppose  to  the  utmost  its  comple- 
tion. Buonaparte,  then  First  Consul,  urged  by  the  difficulty  of  his 
position,  and  partly  perhaps  also  by  his  need  of  pecuniary  resources, 
resolved  upon  the  expedient  of  selling  his  new,  or  rather  inchoate,  ac- 

(g)  Annual  Register,  vol.  xcii.  p.  391.  Art.  i. 

(h)  Gunther,  vol.  i.  p.  95 ;  Schmauss,  vol.  i.  p.  14. 

(i)  Schmauss,  vol.  i.  p.  124.  (k)  Giinther,  vol.  i.  p.  96. 

(1)  Koch,  Hist,  des  Trace's,  c.  xvii. ;  Traite"s  de  Paris  et  de  Hubertsbourg.  vol.  i. 
p.  362. 

(m)  The  secret  convention  was  signed  on  the  same  day  as  the  preliminaries  of 
the  Treaty.  The  Treaty  itself  is  not  signed  till  1763. 


230  PHILLIMORE    ON    INTERNATIONAL    LAW. 

quisition  to  the  United  States.  To  this  bargain,  however,  he  gave  the 
name  of  Cession,  and  it  was  effected  by  the  Treaty  of  Paris,  of  1803, 
between  France  and  the  United  States  of  North  America.  The  words 
of  the  Convention  were  remarkable  : — 

"  Attendu,  y  est-il  dit,  que  par  1' article  3  du  Traite  conclu  a  Saint- 
Ildefonse,  le  9  vendemiaire,  an  ix,  entre  le  Premier  Consul  de  la  Repub- 
lique  Frangaise  et  S.  M.  C.,  il  a  etc  convenu  ce  qui  suit :  [ici  est  insere 
1'article ;]  et  comme,  par  suite  dudit  traite,  et  specialement  dudit  art.  3, 
la  Republique  Frangaise  a  un  titre  incontestable  au  domaine  et  a  la 
possession  dudit  territoire,  le  Premier  Consul  de  la  Republique,  desirant 
de  donner  un  temoignage  remarquable  de  son  amitie  aux  dits  Etats-Unis, 
leur  fait,  au  norn  de  la  Republique  Francaise,  cession,  a  toujours  et  en 
pleine  souverainete,  dudit  territoire,  avec  tous  ses  droits  et  appartenances, 
ainsi  et  de  la  maniere  qu'ils  ont  ete  acquis  par  la  Republique  Frangaise, 
en  vertu  du  traite  susdit,  conclu  avec  S.  M.  C."(n) 

The  peculiarity  of  this  form  arose  from  the  fact  that  the  Treaty  of 
r#noK-i  October,  1800,  had  never  been  formally  executed  *by  either  of 
-I  the  contracting  parties.  The  ninth  article  of  this  Treaty  provi- 
ded that  two  particular  conventions,  to  be  signed  the  same  day,  should 
be  considered  as  inserted  in  the  Treaty  itself.  The  first  contained  the 
stipulation  that  sixty  millions  of  francs  should  be  paid  to  France ;  the 
second,  that  all  claims  upon  France  by  the  United  States  for  illegal  cap- 
tures or  other  matters  should  be  considered  as  discharged. 

It  belongs  to  the  province  of  the  historian  to  record  the  ineffectual 
regret  of  deceived  and  injured  Spain,  and  the  sagacity  of  the  United 
States  in  profiting  by  the  troubles  of  Europe,  both  at  this  period  and 
subsequently  by  the  acquisition  of  Western  Florida.  But  it  should  be 
observed  here  that  the  instance  illustrates  national  acquisition  by  gift, 
sale,  and  exchange,  and  that  the  title  of  the  United  States  to  this  acqui- 
sition has  never  been  questioned. 

CCLX.XII.  The  Election  of  an  individual  to  the  sovereignty  of  a 
State,  though  not  strictly  speaking  a  mode  of  acquiring  territory,  may 
indirectly  be  the  cause  of  it,  when  the  elected  person  is  already  ruler 
over  an  independent  kingdom  to  which  the  new  State  becomes  united. 
Thus  the  Poles,  by  the  election  of  the  Duke  Jagello  in  1386,  united 
Litthauens  to  their  own  kingdom.  And  this  result  may  ensue  not  only 
in  the  case  of  an  elective  sovereignty,  but  also  in  the  instances,  not  infre- 
quent in  history,  of  the  failure  of  the  first  line  of  sovereigns,  and  the 
consequent  necessity  of  choosing  a  collateral  branch,  (o) 

Towards  the  close  of  the  fourteenth  century(  p]  (1375)  the  race  of  king 
Svend  Estrithson  became  extinct  in  the  person  of  Waldemar  IV.  His 
grandchild  Olaf,  the  son  of  his  youngest  daughter  Margaret,  wife  of  the 
King  of  Norway  and  the  asserted  heir  of  Sweden,  was  chosen  successor 
to  the  throne,  because  he  would  eventually  unite  Norway  with  Den- 
mark.^) 

(n)  Koch,  vol.  ii.  p.  322.  (o)  Giinther,  vol.  ii.  p.  97. 

(p)  Dahlman's  Geschichte,  von  Danemark,  2  Band,  pp.  46 — 75. 
(q)  The  senators  were  first  divided,  some  wishing  for  the  acquisition  to  be 
acquired  by  the  Union;  others  objecting  that  Denmark,  an  elective  monarchy 


DERIVATIVE     ACQUISITION.  231 

*01af  died   in  1387;  and  his  ambitious  and  energetic  mother 
having  survived  her  mother  and  child,  and  seized  upon  the  seep- 
tre  of  Sweden  in  1387,  united  the  then  Scandenavian  kingdoms  under 
one  monarchy  by  the  famous  union  of  Calmer  in  1397. 

The  Election  of  the  house  of  Brunswick  to  the  throne  of  G-reat  Britain 
brought  with  it  the  union  of  Hanover,  though  happily  for  a  certain  time 
only,  to  these  kingdoms. 

CCLXXIII.  Marriage  (contrat  de  mariage}  of  the  hereditary  gover- 
nor of  that  country  has  been  frequently  a  mode  of  acquisition  of  new 
territory  to  that  country,  sometimes  by  the  incorporation  of  a  province, 
sometimes  by  the  union  of  two  distinct  and  independent  kingdoms. 

The  wife  of  Charles  II.  of  England  brought  with  her  TaDgiers  and 
Bombay  as  a  dowry,  and  the  latter  has  proved  no  unimportant  addition  to 
the  Empire  of  Great  Britain.  Philip  III.  of  France  acquired  to  the 
French  throne  the  countries  of  Carcasonne  and  Bezier,  the  dowry  of  his 
wife,  Isabella  of  Arragon.  Alphonso  III.  of  Portugal  acquired  the  pro- 
vince of  Algarves  to  the  throne  of  that  country,  as  the  dowry  of  his 
wife,  the  natural  daughter  of  Alphonso  X.  of  Castille.(j-) 

Philip  IV.  of  France  acquired  the  independent  kingdom  of  Navarre 
by  his  marriage  with  Johanna,  Queen  of  that  territory;  and  though, 
after  a  time  Navarre  again  returned  to  the  government  of  its  own 
monarchs,  it  was  finally  acquired  to  the  throne  of  Spain  by  the  marriage 
of  Blanche  of  Navarre  to  John  II.  of  Arragon  1425.  France  acquired, 
through  the  successive  marriages  of  Charles  VIII.  and  Louis  XIII.  with 
Ann  of  Brittany,  that  great  and  formerly  independent  Duchy. 

The  House   of  Hapsburg  owes  its  power  and  station,  partly  to  the 
imperial  dignity  which  it  obtained  toward  the  *end  of  the  thir-  1-^907-1 
teenth  century,  but  still  more  to  the  marriages  which  the  Empe-  L 
rors  of  Austria  have  contracted  with  heiresses. 

Mary  of  Burgundy,  the  daughter  and  sole  heiress  of  the  last  Duke  of 
that  name,  brought  with  her  the  magnificent  dowry  of  the  Low  Coun- 
tries, including  the  Franche-Comte  Flanders,  and  Artois,  to  the  Emperor 
Maximilian,  (s)  The  son  of  this  marriage,  Philip  the  Handsome,  married 
the  sole  heiress  to  the  throne  of  Arragon  and  Castillo,  so  that  it  has  not 
been  untruly  sung  by  the  Poet  of  modern  date, — 

"  Bella  gerant  alii,  tu  felix,  Austria,  nube  ; 
Nam  quse  Mars  aliis,  dat  tibi  regna,  Venus." 

Sometimes  national  rights  and  claims  have  been  conferred  by  mar- 
riage. At  the  peace  of  Noyon,  in  1516,  Francis  I.  of  France  promised 
to  give  with  his  daughter  on  her  marriage  with  the  then  King  Charles 
of  Castille,  all  his  rights  and  title  to  the  kingdom  of  Naples;  and  in 
the  abortive  matrimonial  negotiations  between  the  two  thrones,  it  was 
stipulated  that  certain  lands  should  be  given  in  compensation  for  the 
non-fulfilment  of  a  contracted  marriage  by  the  party  causing  it. (A 

(ein  freies  Wahlreich),  would  thereby  be  subjected  to  Norway,  an  hereditary  king- 
dom (Erbreich,)  ib.  52. 

(r)  Giinther,  vol.  ii.  p.  98  (Abtretung.) 

(«)  Koch,  Tabl.  des  Rev.  t.  i.  p.  316.  (t)  Giinther,  vol.  ii.  p.  99. 


232  PHILLIMORE     ON     INTERNATIONAL    LAW. 

The  marriage  of  sovereigns  may  or  may  not  occasion  a  permanent 
incorporation  of  territories,  according  to  the  laws  of  the  respective  king- 
doms ;  by  which  will  also  be  governed  the  rank  of  each  sovereign  and 
their  respective  powers  and  authorities.  The  instances  of  Philip  and 
Mary  in  England,  Francis  II.  and  Mary  in  Scotland,  William  and  Mary 
in  the  British  dominions,  will  readily  occur  as  illustrations  of  this 
remark.  (M) 

CCLXXIV.  Successio  ab  intestate  (Succession)  is  also  among  the 
r*9Q8i  means  °f  national  acquisition.  It  is  true  that  the  *rules  of 
J  Civil  Law  framed  for  individuals  are  not,  strictly  speaking  appli- 
cable to  nations.  (aA  The  death  of  a  nation  would  be  the  dissolution  of 
its  social  and  political  elements ;  and  there  would  be  no  next  of  kin  to 
take  succession  to  the  property,  which  it  had  occupied,  while  its  corpo- 
rate character  remained.  But  as  States,  represented  by  monarchs,  have 
been  allowed  to  acquire  property  through  the  marriage  of  their  sovereign, 
so  have  they  been  allowed  to  acquire  property  through  his  personal  rela- 
tion, as  next  of  kin,  to  the  sovereign  of  another  territory  in  which  the 
government  is  hereditary,  upon  the  decease  of  that  sovereign  without 
any  nearer  relative.  The  question  has  been  much  discussed  by  writers 
on  the  Law  of  Nations  and  upon  the  general  principles  of  Jurisprudence 
— whether  the  succession  of  the  next  of  kin  to  an  intestate  person  be  a 
law  of  Nature,  or  merely  an  institute  of  Civil  Law.(^) 

It  is  certain,  however,  that  the  death  of  the  ruler  of  the  State,  with- 
out making  any  testamentary  provision  for  his  succession,  even  in  coun- 
tries where  the  power  to  do  so  is  ligitimately  invested  in  him,  can  give 
no  right  to  any  foreign  nation  to  take  possession  of  the  territory  j  for  in 
that  event,  the  power  of  disposition  devolves  upon  the  body  corporate  of 
*the  State.  James  I.  of  England  succeeded  to  the  throne  of 
J  this  country,  partly  by  the  nomination  of  the  dying  Elizabeth, 
and  partly  by  right  of  his  descent.  The  whole  question  of  succession — 
whether  through  Agnates,  relations  on  the  male  side,  or  Cognates,  rela- 
tions on  the  female  side — is  properly  and  exclusively  a  matter  to  be  set- 
tled by  the  constitutional  law  of  the  country  itself.  How  far,  at  least, 
any  exceptions  may  exist  to  this  rule  in  the  right  of  INTERVENTION 
which  the  legitimate  apprehension  of  danger  may  confer  on  other  nations, 
will  be  discussed  in  the  subsequent  pages  of  this  work.  Nor  can  it  be 
denied  that  some  of  the  bloodiest  European  wars  have  arisen  out  of  dis- 

(u)  Giinther,  vol.  ii.  pp.  100 — 103.  Ib.,  and  valuable  notes. 

(x)  Grotius,  1.  ii.  c.  ix. 

(y)  Grotius,  1.  ii.  c.  vii.  s.  iii.  p.  277.  Grotius  is  among  the  supporters  of  the 
former  opinion,  founded  on  the  presumption  that  the  deceased  person  could  not 
have  intended  his  property  to  have  been  lost,  but  must  have  wished  it  to  be  given 
to  those  who  were  dearest, — that  is,  according  to  all  presumption,— those  who 
were  nearest  to  him.  His  commentator,  Cocceius,  thinks  that  the  rule  of  succes- 
sion in  Europe  arises  from  the  necessity  of  the  case  ;  viz.,  that  all  land  being  occu- 
pied by  somebody,  the  relations  of  the  deceased  would  be  without  support  if  they 
did  not  succeed  to  his  prospects.  Sam.  Cocceii  Introd.  ad  Henr.  Cocceii  Grot, 
illustr.  diif.  proem,  x.  ss.  12  et  13  :  "  Cum  rebus  terrae  in  universum  occupatisnihil 
amplius  supersit  quod  occuparipossit,  velnon  quantum  sufficit;  homines  occupatis 
rebus  nati ;  succedunt,  in  occupationem  parentum." — Giinther  adopts  this  reason- 
ing, vol.  ii.  p.  103. 

1'uffendorf,  1.  iv.  c.  xi.     De  Success,  ab  Intestato. 


DERIVATIVE    ACQUISITION.  233 

puted  succession  to  the  government  of  kingdoms.  No  educated  person 
is  ignorant  of  the  wars  of  England  under  the  Edwards  and  Henries,  for 
the  crown  of  France,  or  of  those  horrible  thirty  years  of  warfare,  which 
originated  in  the  claim  of  the  Elector  Palatine  of  Bohemia,  and  which 
desolated  Germany  till  the  Treaty  of  Westphalia, — or  the  general  dis- 
traction and  prolonged  disturbance  of  the  peace  of  Europe  which  arose 
out  of  the  disputed  succession  to  the  House  of  Spain,  and  was  closed  by 
the  Treaty  of  Utrecht. 

The  claim  of  the  sovereign  of  another  nation  is  rarely  without  the  pre- 
text of  support  from  a  party  in  the  country  which  is  the  object  of  his 
ambition.  When  Philip  II.  of  Spain  seized  on  Portugal,  claiming 
through  a  younger  daughter  of  King  Henry,  with  whom  the  male  line 
became  extinct  in  1580^  to  the  exclusion  of  the  House  of  Braganza, 
allied  to  an  elder  daughter,  he  was  supported  by  the  alleged  free  choice 
of  the  magnates  of  Portugal.  The  unfortunate  Elector  Palatine  was 
supported  in  his  pretensions  to  the  kingdom  of  Bohemia  by  the  choice 
and  approbation  of  the  States  of  the  realm. 

A  large  party,  both  in  Great  Britain  and  Ireland,  were  favourable  to 
the  claims  of  the  Pretender  during  the  reign  of  the  first  two  Georges. 
A  similar  remark  is  applicable  to  the  Pretender  to  the  thrones  of  France, 
Spain,  and  Portugal  in  our  own  times. 

*CCLXXV.  Testamentary  disposition  has  unquestionably 
been  a  mode  of  territorial  acquisition  by  nations,  in  the  persons 
of  their  governors.  But  it  can  only  be  so  when  the  kingdom  is  proprie- 
tary— a  state  of  things  which  it  has  been  already  observed(z)  cannot  be 
said  now  to  exist  in  Europe;  not  even,  it  is  presumed,  in  Russia;  though 
it  might  happen  that  the  nation  adopted  and  ratified  the  will  of  the  de- 
ceased sovereign.  The  famous  will  of  Charles  II.  of  Spain,  made  (2d 
October,  1700),  under  the  superintendence  of  the  Cardinal  Portocarrero 
his  minister,  and  after  receiving  the  advice  of  the  Pope  and  of  the  most 
learned  theologians — that  will  by  which  he  bequeathed  dominions  upon 
which  the  sun  never  set,  to  the  second  son  of  the  Dauphin  of  France — 
is  a  remarkable  instance  of  the  exercise  of  this  power,  but  one  which  is 
not  likely  to  be  imitated. 

In  truth,  the  only  sound  rule  upon  the  whole  subject  of  these  modes 
of  acquisition,  either  testamento  or  db  intestate,  which  can  find  its  place 
in  a  work  of  International  Jurisprudence,  is  this,  that  the  voice  of  the 
people  of  the  country,  concerning  whose  government  the  dispute  arises, 
should,  through  the  legitimate  channels  of  its  own  constitution,  decide 
the  question  for  itself  in  such  a  manner  as  not  to  threaten  the  security 
of  other  nations. 

Conquest,  fortified  by  subsequent  treaty,  gives  a  valid  International 
title  to  territory;  but  this  subject  belongs  to  a  later  part  of  this  work. 

The  case  of  the  acquisition  of  a  portion  of  the  dominion  of  Saxony  by 
Prussia,^)  in  1814,  is  so  anomalous,  that  it  is  impossible  to  class  it 

(z)  Vide  ante,  p.  284. 

(a)  See  Talleyrand's  admirable  Memoire  raisonne"  on  this  subject,  Trait,  de 
Dipl.,  De  Garden,  t.  iii.  p.  146. 

AUGUST,  1854.— 16 


234          PHILLIMORE    ON    INTERNATIONAL    LAW. 

under  any  known  or  legitimate  category  of  International  Acquisition. 
^  belong  to  any,  it  is  to  *that  of  Conquest  and  Treaty  just 
mentioned ;  but,  in  truth,  it  belongs  to  the  class  of  transactions 
of  which  we  must  say, 

"  Non  ragionam  di  loro,  ma  guarda  e  passa."(6) 

with,  however,  a  strong  protest  that  no  axiom  of  International  Law  is  to 
be,  deduced  from  an  act,  which  seems,  upon  all  the  principles  of  that 
science,  indefensible. 


[*302]  *CHAPTEK    XV. 

ACQUISITION   OP   RIGHTS. 

CCLXXVI.  The  property  of  a  State  may  not  only  be  alienated,  but 
may  also  be  subjected  to  obligations  and  services  in  favour  of  another  State; 
as  the  property  of  an  individual  may  be  burdened  and  encumbered  in 
favour  of  another  individual. (a)  This  may,  of  course,  happen  in  various 
ways;  but  it  most  frequently  occurs  when  a  State,  having  contracted 
pecuniary  obligations  towards  another  State,  has  mortgaged  its  revenues, 
or  pledged  a  portion  of  its  territory,  as  a  security  for  the  payment  of  its 
debts.  Thus,  among  other  instances,  the  United  Provinces  of  the  Ne- 
therlands hypothecated  Vlissingen,  Rameken,  and  Briel  to  England,  in 
1585.  Denmark,  in  1654,  hypothecated  the  province  of  Holland  to 
Sweden,  as  a- security  for  the  peace  then  concluded.  (6)  Weimar  appears 
to  have  been  pawned,  so  to  speak,  to  Mecklenburg  in  1803, (c)  and  Cor- 
sica by  Genoa  to  France  in  1768. 

We  are  not  speaking  now,  it  will  be  observed,  of  debts  contracted  by 
States  to  Individuals  (a  question  to  be  dealt  with  hereafter),  but  to  other 
States. 

r#oAo-i  *CCLXXVII.  It  sometimes  happens  that  the  debt  between 
-I  the  Government  of  one  country  and  the  Government  of  another 
is  made  the  subject  of  a  treaty.  Sometimes  the  Government  of  a  third 
Power  guarantees  the  payment  of  the  debt.(cZ)  In  1776  Russia  guaranteed 
a  loan  of  500,000  ducats  contracted  by  the  Polish  Government. 

By  the  97th  article  of  the  Treaty  of  Vienna  (1815),  the  maintenance 

(6)  Dante,  Inferno,  in.  61. 

(a)  Giinther,  vol.  ii.  pp.  153—161.     Vattel,  1.  ii.  c.  ii.  s.  80. 

Heffters,  p.  133.  s.  71. 

Kliiber,  vol.  i.  s.  140. 

(6)  Gunther,  vol.  ii.  p.  153. 

Uumont,  C.  Dipl.  t.  v.  s.  i.  p.  454. 

(c)  Martens,  Rec.  vol.  viii.  s.  54.     Ib.  p.  229. 

See  too,  Schmauss,  C.  J.  G.  vol.  ii.  pp.  1140,  1150. 

(d)  Vattel,  1.  ii.  c.  xvi.  s.  235 — 261.    Vide  post,  Chapter  on  TREATIES. 
Kliiber,  s.  155—157.,  n.  d. 

Gunther,  vol.  ii.  pp.  243 — 254. 


ACQUISITION    OF    EIGHTS.  235 

of  the  credit  and  solvency  of  the  establishment  called  the  Mont-Napoleon, 
at  Milan,  was  especially  provided  for. 

CCLXXVIII.  States  are  sometimes  placed  in  such  physical  relations 
to  each  other,  that  some  limitations  of  the  abstract  rights  of  each  neces- 
sarily flow  from  their  natural  relations,  or  from  the  reason  of  the  thing. 
Thus  a  State  is  bound  to  receive  the  waters  which  naturally  flow  within 
its  boundaries  from  a  conterminous  State.  This  obligation  belongs  to 
the  class  of  "servitutes  juris  gentium  naturales"  and  here  the  provisions 
of  the  Digest(e)  and  Institutes  may  be  said  to  be  identical  with  those  of 
International  Law.(/) 

CCLXXIX.  A  State  may  voluntarily  subject  herself  to  obligations  ia 
favour  of  another  State,  both  with  respect  to  persons  and  things,  which 
would  not  naturally  be  binding  upon  her.  These  are  "  servilutes  juris 
gentium  voluntaries" (g^ 

*In  the  language  of  Jurisprudence,  when  a  thing  is  subject  to 
the  exercise  of  a  right  by  a  person  who  is  not  the  master  or  pro- 
prietor,  it  is  said  to  serve  (res  servify  or  yield  service  to  that  other  .per- 
son. (A) 

CCLXXX.  The  doctrine  of  Servitus  occupies  an  important  place  in 
the  Roman  Law;  and  in  some  shape,  and  under  some  appellation  or 
other,  exists  of  necessity  in  the  jurisprudence  of  all  nations. (ij  This 
obligation  to  service  constitutes  a  right  in  the  obligee  or  the  person  to 
whom  it  is  due,  and  it  ranks  among  the  "jura  in  re,"  while  it  operates 
as  a  diminution  and  limitation  of  the  right  of  the  proprietor  to  the  exclu- 
sive and  full  enjoyment  (libertas  rei\  of  his  property. (&) 

According  to  the  Roman  Law,  the  Servitus  consisted  either — 1.  in  not 
doing  something  (in  non  faciendo},  and  was  negative  (servitus  negativa); 
or  2.  in  suffering  something  to  be  done  (in  patiendo),  and  was  affirmative 

(e)  "  Semper  haec  est  servitus  inferiorum  prsediorum  ut  naturd  profluentum 
acquam  excipiant." — Dig.  xxxix.  t.  iii.  1.  s.  22. 

(/)  Heffters,  s.  43  :  "  Worauf  sich  unbedenklich  auch  die  Vorschriften  des 
ROmischen  Weltrechtes  anwenden  lassen." 

(ff)  J.  N.  Hertius,  in  diss.  de  servitute  naturaliter  constituta  cum  inter  diversos 
populos,  turn  inter  ejusdem  reipublicae  cives,  (Prolegom.  s.  3.  in  ejusd.  Comment, 
et  Opercul.  v.  ii.  t.  iii.  p.  66.)  defines  servitus  as  "jus  in  re  aliena,  alter!  a  natura 
constitutum,  cujus  vi  et  potestate  dominus  istius  rei  ad  alterius  utilitatem,  aliquid 
pati  aut  non  facere  in  suo  tenetur." — De  necessitate  et  usu  Juris  Gentium,  &c., 
Wieland  et  Foerster,  Lipsise,  s.  xvi.  p.  37. 

(A)  Dig.  viii.  passim. 

Instit.  ii.  3. 

Cod.  iii.  t.  34. 

Domat,  1.  i.  t.  12.  s.  1. 

Savigny,  Recht  des  Besitzes,  Fiinfter  Abschnitt,  p.  575. 

Mackeldey,  Lehrbuch  des  R.  R.,  s.  274.  u.  s.  w. 

Schilling,  Pandekten  Recht,  s.  446.  u.  s.  w. 

Puchta,  Instit.  s.  252. 

(i)  "  Aussi  les  servitudes  ont-elles  e*te"  reconnues  partout  ou  les  hommes  se  sont 
fixes  d'une  maniere  permanente  en  formant  des  associations  durables." — Ahren?, 
Philosophic  du  Droit,  p.  324. 

"When  a  thing  or  property  was  free  from  all  servitus,  it  was  called  res  optima 
maxima." — Dig.  1. 1.  16.  s.  90,  169. 

Cicero,  De  Lege  Agrar.  iii.  2. 

(k)  "  Cum  quis  jus  suum  deminuit,  alterius  auxit,  hoc  est  ei  servitutem  aedibus 
suis  imposuit." — Dig.  xxxix.  t.  1.  s.  5,  9. 


236  PHILLIMORE    ON     INTERNATIONAL    LAW. 

(servitus  affirmative?) :  but  it  could  not  consist  in  the  obligation  to  do 
something  (in  faciendo').  Not  that  the  owner  of  a 'thing  might  not  be 
obliged  to  do  something  in  relation  to  that  thing,  for  the  benefit  of  an- 
other  person;  but  that  this  obligation  *assumed  a  technically 
different  character,  and  was  not  a  "jus  in  re."(l\ 

It  is  not,  however,  necessary  to  examine  with  greater  minuteness  the 
provisions  of  the  Roman  Law  upon  this  subject,  though  some  mention  of 
the  general  doctrine  was  a  necessary  preface  to  the  application  of  it  to 
the  case  of  States ;  for  some  States,  as  well  as  individuals,  have  been  and 
are  entitled  to  exercise  rights  of  this  description,  and  others  therefore  are 
and  have  been  subject  to  the  obligations  which  correspond  to  them. 

CCLXXXI.  The  servitutes  juris  gentium  must,  however,  be  almost 
always  the  result  either  of  certain  prescriptive  customs,  or  of  positive 
convention.  The  entire  liberty  which  each  State  naturally  possesses 
over  its  own  property  cannot  be  curtailed  upon  presumption.  The  jus 
in  re  aliena  is  a  derogation  from  the  general  principle  of  law,  and  re- 
quires, as  a  special  and  extraordinary  right,  the  strictest  proof  of  its 
existence. 

CCLXXXII.  History  furnishes  many  examples  of  these  servitutes 
volunlaria?.}  both  as  to  persons  and  things.  As  to  persons,  the  stipula- 
tions of  various  Treaties  between  England  and  France  provide  that  the 
Stuart  Pretender  should  not  be  permitted  to  reside  in  France,  (m)  And 
when  Spain  confirmed  by  Treaty  the  acquisition  of  Gibraltar  to  England, 
she  stipulated  that  neither  Moors  nor  Jews  should  be  allowed  to  reside 
there.  (») 

As  to  places,  there  are  various  instances  of  servitutes  both  negative 
and  affirmative,  but  chiefly  of  the  latter  description.  Of  the  negative 
kind  was  the  engagement  of  France,  the  subject  once  of  so  much  anxiety 
r*30fi1  anc^  so  manv  *conventions,  that  the  port  and  fortifications  of 
-I  Dunkirk  should  be  destroyed. (o)  British  and  Dutch  Commis- 
sioners were  empowered  by  Treaty  to  superintend  the  execution  of  these 
demolitions,  and  though  ejected  in  time  of  war,  they  returned  with  the 
restoration  of  peace,  and  were  only  finally  withdrawn,  in  compliance 
with  the  provisions  of  the  Treaty  of  Versailles,  1783. (p) 

By  the  Treaty  of  Paris,  1814, (q)  it  was  stipulated  that  Antwerp  should 
be  an  exclusively  commercial  port;  and  the  stipulation  was  renewed  by 
the  Treaties  of  1831-39,  which  erected  Belgium  into  a  separate  king- 
dom.^) 

By  the  same  Treaty  of  1831, (s)  it  was  stipulated,  negatively,  that  the 
fortresses  of  Menin,  Ath,  Mons,  Philippeville,  and  Marienburg  should 

(1)  "  Servitutum  non  ea  natura  est  ut  aliquid  facial  quis  (veluti  viridaria  tollat' 
aut  amoeniorem  prospectum  praestet,  aut  in  hoc  ut  in  suo  pingat :)  sed  ut  aliquid 
patiatur,  aut  non  facial." — Dig.  viii.  t.  i.  s.  15. 

(m)  Treaty  of  Utrecht  (1713),  between  France  and  England,  Art.  4. 

fra)  Treaty  of  Utrecht,  between  Spain  and  England,  Art.  10. 

(o)  Trait4  d'Utrecht  (1713),  Art.  9. 

Traite1  de  la  Haye  (1717),  Art.  4. 

(p)  Koch,  Hist,  des  Tr.  vol.  i.  pp.  333-4.  See,  too,  the  Treaties  of  Radstadt  and 
Baden  between  France  and  the  Emperor  of  Germany,  Arts.  5,  8,  9. 

(q)  Art.  15.  (r)  Art.  14.  (*)  Art.  1. 


EXTINCTION    OP    DOMINION. 

« 

be  demolished  before  the  1st  of  December,  1833;  and  affirmatively,  that 
the  other  Belgian  fortresses  should  be  kept  in  repair  by  the  King  of  the 
Belgians. 

At  one  time  Holland  insisted  that  the  Ostend  East  India  Company, 
founded  in  1723,  and  abolished  by  the  Treaty  of  Vienna  in  1731,  was 
under  a  servitus  non  navigandi.(t\ 

The  Treaty  of  Vienna  (1814),  which  reinstated  the  Pope  in  the  pos- 
session of  the  Marches,  Camerino,  Beneventum,  Ponte-corvo,  and  the 
Legations  of  Ravenna,  Bologna,  and  Ferrara,  on  the  right  bank  of  the 
Po,  subjected  His  Holiness  at  the  same  time  to  the  servitus  of  suffering 
Austrian  garrisons  "dans  lesplaces(u)  de  Ferrare  et  Commachio." 


*CHAPTER    XVI.  [*307] 

EXTINCTION   OP  DOMINION,  (a) 

CCLXXXIII.  As  Dominion  is  acquired  by  the  combination  of  the 
two  elements  of  fact  and  intention,  so,  by  the  dissolution  of  these 
elements,  or  by  the  manifestations  of  a  contrary  fact  and  intention,  it 
may  be  extinguished  or  lost.(i) 

In  this  case  the  dominion  is  lost,  actually  or  by  presumption,  with  the 
consent  of  the  State  which  loses  it. 

CCLXXXIV.  The  title  of  Prescription  in  another  State  is  often, 
though  not  necessarily,  founded  on  the  presumed  dereliction  of  the  pos- 
session by  the  original  owner. 

It  must  be  borne  in  mind  that  this  presumption  like  all  others,  is 
liable  to  be  repelled  by  proof  of  sufficient  strength?(c)  that  is,  by 
evidence  of  a  state  of  facts  wholly  inconsistent  with  such  presumption. 
On  the  other  hand,  it  should  be  observed  that  there  is  a  conduct,  and 
that  there  are  acts  on  *the  part  of  a  State,  which  must  be  con-  r^ono-i 
strued  as  an  abandonment  of  her  previous  rights.  For  instance,  a  L 
State  may  make  herself  a  party  to  some  convention  upon  another  matter, 
but  in  which  the  possession  or  right  originally  belonging  to  her  is 


w 

Or 


(i)  Kliiber,  s.  133.  n.  c. 
Ompteda,  tit.  ii.  600. 

(u~)  The  real  meaning  of  this  term  underwent  much  discussion  during  the  recent 
disturbances  in  Italy. 

(a)  Grotius,  1.  ii.  c.  ix. — Quando  imperia  vel  dominia  desinunt,  1.  iii.  c.  ix.  9. 
Martens,  t.  ii.  1.  ix.  p.  340-4. 

Giinther,  vol.  ii.  p.  213. 

Heffters,  72. 

Muhlenbruck,  1.  ii.  c.  iii.  s.  2 TO. 

(b)  "  Fere  quibuscunque  modis  obligamur,  iisdem  in  contrarium  actis  liberamur ; 
quum  quibus  modis  acquirimus,  iisdem  in  contrarium  actis  amittimus.     Ut  igitur 
nulla  possessio  acquiri,  nisi  animo  et  corpore  potest,  ita  nulla  amittitur,  nisi  in 
qua  utrumque  in  contrarium  actum  est." — Dig.  L.  IT,  153;  xli.  2,  8. 

(c)  "  Quia  vero  tempus  memoriam  excedens  quasi  infinitum  est  moraliter,  ideo 
ejus  temporis  silentium  ad  rei  derelictse  conjecturam  semper  sufficere  videbitur, 
nisi  validissimce  sint  in  contrarium  rationes." — Grotius,  De  J.  B.  1.  ii.  c.  iv.  s.  7. 


238  PHILLIMORE    ON    INTERNATIONAL    LAW. 

.     • 

indirectly,  though  of  necessity,  treated  as  belonging  to  the  claimant  by 
prescription  ;  and  such  convention  being  concluded  without  any  reserva- 
tion on  the  part  of  the  nation,  would  be  very  strong  evidence  of  the 
abandonment  of  her  right. 

-  Again,  if  a  nation  suffer  other  nations  in  their  mutual  arrangements 
to  deal  with  the  right  of  possession  in  question  as  belonging  to  one  of 
them,  and  makes  no  protest  in  favour  of  her  claims,  she  must  be  held  to 
have  acquiesced  in  the  transaction.  An  individual  may  indicate  his 
acquiescence  by  his  words  or  by  his  deeds.  "  Recusari  haereditas  non 
tantum  verbis,  sed  etiam  re  protest,  et  alio  quovis  indicio  voluntatis"(c?) 
is  the  doctrine  of  the  Roman  Law ;  and  upon  it  Grotius(e)  remarks, 
"Sic  si  is  qui  rei  alicujus  est  dominus,  sciens  cum  altero  earn  rem 
possidente  tanquam  cum  domino  contrahat,  jus  suum  remisisse  merito 
habebitur  :  quod  cur  non  et  inter  reges  locum  habeat,  et  populos  liberos 
nihil  causse  est."  And  again  :  "Venit  enim  hoc  non  ex  jure  civili  sed 
ex  jure  naturali,  quo  quisque  suum  potest  abdicare,  et  ex  jure  naturali 
praesumptione,  qua  voluisse  quis  creditur  quod  sufficienter  significavit : 
quo  sensu  recte  accipi  potest  quod  Ulpianus  dixit,  juris  gentium  esse 
acceptilationem.'Y/) 

Heineccius,  in  his  Commentary  on  Grotius,  expresses  concisely  the 
the  same  doctrine  "inter  gentes  loco  signi  est  patientia  scientia."^/) 

It  is  indeed  true  that,  according  to  Grotius,  silence  cannot  be  construed 
r*3f)Q1  as  an  assen*'>  unless  it  ke  "  scientis  et  libere  *volentis  ;"  but  he 
-I  adds  that  "  temporis  in  utrumque  magna  vis  est '"  and  in  fact 
these  conditions  are  presumed  after  the  lapse  of  time.(7i) 

CCLXXXV.  The  practice  of  nations  confirms  this  theory :  they  have 
frequently  entered  protests(i)  in  favour  of  their  alleged  rights  upon  the 
conclusion  of  Treaties  in  which  these  rights  were  expressly,  or  by  impli- 
cation, negatived.  It  is  hardly  necessary  to  add,  that  a  nation,  who  is 
herself  a  party  to  such  a  Treaty,  without  making  any  protest,  has 
unquestionably  abandoned  her  rights.  The  Congress  of  Aix-la-Chapelle 

(d)  Dig.  xxix.  2.  s.  95.  (e)  L.  ii.  c.  iv.  s.  4. 

(/)  Ib.    Dig.  xlvi.  4.s.  8. 

(g)  Prselect.  1.  ii.  c.  iv.  s.  4.     See,  too,  Mably,  Droit  Public,  t.  ii.  p.  21,  22. 

(h)  Grotius  (De  Jure  Belli,  p.  227.)  says  :  "  Sed  ut  ad  derelictionem  praesumen- 
dam  valeat  silentium  duo  requiruntur,  ut  silentium  sit  scientis,  et  ut  sit  libere 
volentis,  nam  non  agere  nescientis,  caret  effectu  ;  et  alia  causa  cum  apparet,  cessat 
conjectura  voluntatis." 

"  Ut  haec  igitur  duo  adfuisse  censeantur,  valent  et  aliae  conjecturse  :  sed  temporis 
in  utrumque  magna  vis  est.  Nam  primum  fieri  vix  potest,  ut  multo  tempore  res  ad 
aliquem  pertinens  non  aliqua  via  ad  ejus  notitiam  perveniat,  cum  multas  ejus  oc- 
casiones  subministret  tempus.  Inter  prsesentes  tamen  minus  temporis  spatium  ad 
hanc  conjecturam  sufficit,  quam  inter  absentes,  etiam  seposita  lege  civili.  Sic  et 
incussus  semel  metus  durare  quidem  nonnihil  creditur,  sed  non  perpetuo,  cum 
tempus  longum  multas  occasiones  adversus  metum  sibi  consulendi,  per  se,  vel  per 
alios  suppeditet,  etiam  exeundo  fines  ejus  qui  metuitur,  saltern  ut  protestatio  de 
jure  fiat,  aut,  quod  potius  est,  ad  judices  aut  arbitros  provocetur." 

"  Kuroxoj'  Kai  0ej3aiov  rr\v  KTfiaiv  7r£7roojK<5roj  TOV  Ix,p6v(f»." — DionyS.  llalicai'll.  C.  ix.  t. 
ii.  p.  155. 

"Xpdvojyap  evpapfis  §e6s," 

according  to  the  remarkable  expression  of  Sophocles  ('HXtxrpa,  179.). 
(i)  Mably,  Droit  Public,  t.  i.  pp.  104,  342. ;  t.  ii.  pp.  43,  193. 
De  Rayneval,  Instit.  du  Droit  de  la  Nature  et  des  Gens,  1.  ii.  c.  ix.  s.  2. 


EXTINCTION     OP    DOMINION.  239 

(1748)  was  the  last  in  the  eighteenth  century  at  which  these  protests 
were  made.  Thus,  the  Pope  has  perpetually  protested,  from  the  Treaty 
of  "Westphalia  to  the  Congress  of  Vienna,  against  all  Treaties  recognising 
or  confirming  the  confiscation  of  Church  property  effected  at  or  since  the 
time  of  the  Reformation.(&) 

*In    1814(?)  the   King   of  Saxony  published   an   admirable  P^OIA-I 
protest  against  the  dismemberment  of  his  kingdom.     And  at  the  •- 
Congress  of  Vienna  (1815)  the    Pope   and   G-ustavus  IV.,  ex-king  of 
Sweden,  delivered  protests.(m) 

CCLXXXVI.  This  dereliction  of  property  is,  however,  often  not  left, 
and  where  it  is  possible  never  should  be  left,  to  the  inferences  of  legal 
presumption.  The  solemn  renunciation  of  territory  and  of  rights  by  a 
State  is  one  of  the  most  important  subjects,  both  of  Public  and  Interna- 
tional Jurisprudence.  Memorable  instances  of  their  importance  are  to 
be  found  in  the  Treaties  of  Utrecht.  In  these  Treaties  the  renunciations 
of  the  Emperor  of  Germany,  the  King  of  France,  and  the  King  of 
Spain  established  the  separation  of  the  Crowns  of  France  and  Spain  as  a 
fundamental  rule  of  European  International  Law,  and  severed  Belgium, 
Milan,  and  Naples  from  the  Spanish  monarchy. 

The  States  or  State  interested  in  the  renunciation  must  take  care  that 
it  be  ratified  by  the  Constitutional  Authorities  of  the  renouncing  kingdom. 
We  may  close  this  subject  with  the  remark  of  Mably  :  "  Tous  les  peuples 
sentent  la  necessite  des  renonciations  pour  etablir  entre  eux  la  surete, 
1'ordre,  et  la paix;  ne  doit-ilpas  etre  absurde  dedouterde  leur validite  ?"(ft) 

CCLXXXVII.  Another  mode  of  extinguishing  dominion  is,  as  we 
have  seen,  by  voluntary  transfer  of  the  possession  j  but  it  is  important 
to  observe,  that  if  a  part  of  a  territory  be  alienated,  it  carries  with  it  to 
the  new  owner  all  the  obligations  and  debts  by  which  it  was  previously 
bound ;  here,  as  in  most  cases,  the  principle  of  the  Roman  Law  being 
applicable: — "Id  enim  bonorum  cujusque  esse  intelligitur  quod  seri 
alieno  superest.(o)  When  property  has  been  granted  *under  a  r^o-i-i-i 
condition  which  has  not  been  fulfilled  on  the  part  of  the  grantee,  "- 
then  redit  dominium  ipso  jure  to  the  grantor.  And  in  this  case  it 
appears  consonant  to  justice  that  the  property  should  be  restored  to  the 
grantor  with  its  intermediate  fruits  and  revenues,  and  without  the  bur- 
dens or  obligations  imposed  on  it  during  its  temporary  ownership,  there 
being,  as  Jurists  say,  a  dominii  resolutio  ex  tunc,(p) 

(k)  Koch,  Hist,  des  Tr.  t.  i.  p.  316.  (ed.  Brux.  1837). 

Mably,  t.  i.  p.  143 ;  t.  ii.  pp.  50,  130-9,  prcesertim  (for  History  of  the  Renuncia- 
tion of  France  in  the  Treaties  of  Utrecht)  p.  148. 

Wheaton,  Hist.  p.  87. 

(I)  Garden,  Tr.  de  Dipl.  t.  iii.  p.  205,  contains  the  Protest  at  length.  See,  too, 
p.  146 — the  Memoire  raisonne. 

(«i)  Koch,  t.  iii.  p.  500.  (n)  Droit  Public,  t.  ii.  p.  140. 

(o)  D.  de  V.  S.  1. 1.  xvi.  125 ;  xlix.  t.  xir.  s.  11,  D.  de  Jure  Fisc. 

(p)  "  Amittimus  etiam  dominium,  quod  sub  resolvente  conditione  acquisivera- 
mus,  si  conditio  impletur.  Hoc  autem  duobas  modis  fieri  potest.  Aliquando  enim 
ita  resolvitur  jus  nostrum,  ut  res  nunquam  nostra  fuisse  videatur,  turn  onera  ei  i 
nobis  imposita  evanescunt,  et  res  cum  fructibus  et  omni  causa  restituenda  est. 
Hasc  rescissio  accidit,  quoties  sub  casual!  conditione  res  nobis  alienata  fuerat,  reluti 
si  ager  sub  lege  commissoria  emptus,  ob  pretium  non  solutum  inemptus  sit.  (Ex- 
empla  extant  in  fr.  iii.  s.  iii.  D.  18, 2  (de  in  diem  addictio.) ;  fr.  3  D.  20, 6  (quibus  mod. 


240  PHILLIMOBE    ON    INTERNATIONAL    LAW. 

CCLXXXVIII.  The  doctrine  of  Postliminium^q)  in  the  case  of  States, 
is  borrowed  from  the  Roman  Law,  and  belongs  to  the  time  of  Peace  as 
well  as  War,  though  properly  and  chiefly  to  the  latter,  where  it  will  be 
further  discussed. 

The  jus  postliminii,  in  the  sense  in  which  it  is  now  about  to  be  used, 
nitq-in-i  means  the  right  of  being  reinstated  in  property(r)  *and  rights 
J  which  have  been  accidentally  lost  or  illegally  taken  away. 
They  must,  however,  have  been  at  one  time  actually,  and  not  theoreti- 
cally,^ possessed, — as  was  rightly  determined  in  the  case  of  Belgium, 
which  has  been  already  mentioned.^) 

CCLXXXIX.  When  property,  or  rights,  have  been  so  lost  and  taken 
away,  it  should  seem  to  be  the  better  opinion  of  jurists,  that  even  a  bona 
fide  possessor  and  purchaser  must  restore  them  to  the  rightful  owner(w) 
— and,  moreover,  without  compensation  for  the  expenses  which  he  (the 
bona  fide  possessor)  may  have  incurred  in  purchasing  it.  He  is  not 
even,  according  to  many  jurists,  following  the  doctrines  of  the  Civil  Law, 
entitled  to  the  cvpirpct,  the  inventionis prcRmia,(x}  except,  indeed,  in  cases 
in  which  the  rightful  owner  himself  must  have  paid  for  the  recovery  of 
the  goods  of  a  friend  from  the  possession  of  an  enemy,  (y)  Salvage  on 
recapture  is  founded  on  this  principle,  and  is  a  part  of  the  Maritime  Law, 
not  only  of  our  own,  but  of  all  civilized  nations.  Property  recovered 
from  robbers  by  sea  or  land  falls  of  course  under  the  same  principle. 

CCXC.  Upon  the  question,  however,  whether  the  bona  fide  possessor 

pign.  vel.  hyp.  solv.),  c.  iv.  C.  4,  54  (de  pactis  inter  emt.  et  venditor.)  Redit  do- 
minium  ipso  jure.)  Aliis  in  causis  revocatio  dominii  in  praeteritum  trahenda  non 
est ;  quo  casu  res  sine  fructibus,  sed  cum  oneribus  ei  a  nobis  impositis  restitui 
debet.  (Exempl.  in  fr.  3.  in  f.  D.  20,  6.  (tit.  cit.),  fr.  3.  D.  18,  6  (de  rescind,  vend.), 
c.  2.  C.  4,  54  (tit.  cit.),  Dominium  ipso  jure  non  redit,  sed  tenemur  ad  rem  veteri 
domino  tradendam.)  Hodierni  illam  dominii  resolutionem  ex  tune:  hanc  vero  ex 
nunc  appellare  consueverunt.  Haec  maxime  turn  obtinet,  cum  res  sub  potestativa 
conditione  nobis  abalienata  erat." — WarnkOnig,  Instit.  Jur.  Rom.  Privati,  1.  ii.  c. 
ii.  tit.  viii.  s.  378. 

(q)  Grotius,  1.  iii.  c.  ix.,  De  Postliminio. 

"Dictum  est  autem  postliminium  a  limine  etpost;  unde  eum,  qui  ab  hostibus 
captus,  in  fines  nostros  postea  pervenit,  postliminio  reversum  recte  dicimus.  Nam 
limina  sicut  in  domibus  finem  quendam  faciunt.  Sic  et  imperii  finem  limen  esse 
veteres  voluerunt.  Hinc  et  limes  dictus  est,  quasi  finis  quidam  et  terminus ;  ab  eo 
posliminium  dictum,  quia  eodem  limine  revertebatur,  quo  amissus  fuerat." — Institut. 
].  i.  tit.  xii.  Quibus  modis  jus  patrice potestalis  solvilur,  s.  5. 

Bynkershoek,  Q.  J.  P.  1.  i.  c.  xvi.,  De  Jure  Postliminii  varia. 

(r)  Grotius,  1.  ii.  c.  x.,  De  obligations  quce  ex  dominio  oritur  ;  or,  according  to  Bar- 
beyrac's  most  correct  translation,  "De  1'obligation  que  le  droit  de  propriete"  impose 
&  autrui,  par  rapport  au  proprie"taire." 

(s)  Grotius,  1.  iii.  c.  ix.,  De  Postliminio.  (t)  Wbeaton's  Hist.  pp.  547-555. 

(M)  Grotius,  1.  ii.  c.  x.  i.  5.,  De  obligatione  quce  ex  dominio  oritur:  "Nam  ad 
dominii  naturam  nihil  refert  ex  gentium  an  ex  civili  jure  oriatur :  semper  enim 
secum  habet  quae  sibi  sunt  naturalia,  inter  quas  est  obligatio  cujusvis  possessoris 
ad  rem  domino  restituendam.  Et  hoc  est  quod  ait  bl&rti&nus  jure  gentium  condici 
posse  res  ab  his  qui  non  ex  justa  causa  possident." 

(x)  Grotius,  1.  ii.  c.  x.  note  (14) :  "  Quid  ergo,  si  evperpa  (id  est,  inventionis  prsemia) 
quse  dicunt,  petat?  Nee  hie  videtur  furtum  facere,  etsi  non  probe  petat  aliquid." — 
Dig.  xlvii.  t.  ii.  44,  9,  De  Furtis. 

(y)  Heineccius  indeed  thinks  this  practice  "  ex  regula  honesti,"  but  not  "  ex 
regula  justi;"  because  no  owner  ought  "res  suas  bis  emere." — Heinec.  in  Grot.  1. 
ii.  c.  x.  9. 


EXTINCTION    OP    DOMINION.  241 

is  bound  to  restore,^)  not  only  the  possession,  but  *the  inter-  r*q-iq-i 
mediate  fruits  and  profits  which  he  has  derived  from  it,  there  is  L 
some  difference  of  opinion.  Grotius  and  Puffendorf(a)  hold  that  he 
must  restore  so  much  of  the  fruits  of  the  property  as  have  increased  his 
fortune,  though  not  the  value  of  that  which  has  been  consumed  by  him 
upon  his  actual  necessities.  They  found  this  maxim  upon  a  rule  to  be 
found  in  the  Digest:  "Jure  naturae  eequum  est  neminem  cum  alterius 
detrimento  et  injuria  fieri  locupletiorem."(&)  The  rigid  adoption  of  this 
rule  has  led  them  both  into  considerable  perplexity,  and  into  the  neces- 
sity of  allowing  many  exceptions  from  it,  chiefly  founded  on  the  doctrine 
of  obligations  from  implied  contracts  (ex  quasi  contractual^)  It  is  difli- 
cult  not  to  agree  with  Barbeyrac,  that  the  rule  cited  is  not  necessarily 
applicable  to  any  cases  of'this  description  :(e?)  "Mais,"  (he  says)  "pour 
ne  pas  1'etendre  trop  loin,  il  faut  considerer,  si  celui  qui  profile,  aux 
depens  d'un  autre,  n'a  pas  un  droit  de  faire  ce  profit.  Car  s'il  en  a  un 
droit,  alors  on  voit  bien  que  c'est  tant  mieux  pour  lui,  et  tant  pis  pour 
l'autre."(e)  The  maxim  cited  from  the  Civil  Law  may  indeed  be  opposed 
by  another  derived  from  the  same  source :  "  Bona  fides  tantundem  possi- 
denti  prsestat,  quantum  veritas,  quoties  lex,"  (that  is,  some  particular 
law)  "impedimento  non  est/'(/)  and  that  the  true  rule  of  International 
Law  is,  that  the  peaceable  enjoyment  *of  an  honest  possessor  is  [-#01 4-1 
to  be  considered  as  a  kind  of  interregnum  which  has  interrupted  L 
the  power  of  the  true  proprietor,  but  insures  to  the  putative  proprietor 
the  fruits  of  his  management  while  he  was  in  full  authority.^) 

CCXCI.  Giinther  seems  to  admit  the  position  of  Grotius,  but  asserts 
that  the  honest  possessor  may  set  off  the  costs  of  the  improvements  which 
he  has  effected,  against  the  emoluments  which  he  has  received. (A.)  Heff- 
ters  takes,  in  effect,  the  same  view  of  the  matter  as  Barbeyrac,  but  with- 
out referring  to  him.(i')  Heffters  founds  his  opinion  upon  the  position, 
that  the  silence  of  the  true  proprietor,  during  the  time  the  honest  pos- 
sessor was  in  authority,  ought  to  secure  to  the  latter  his  gains;  and  Bar- 
beyrac acutely  observes,  what  Thorn asius,  who  followed  in  the  wake  of 

(2)  "  Thou  shalt  not  see  thy  brother's  ox  or  his  sheep  go  astray,  and  hide  thy- 
self from  them ;  thou  shalt  in  any  case  bring  them  again  unto  thy  brother. 

"  And  if  thy  brother  be  not  nigh  unto  thee,  or  if  thou  know  him  not,  then  thou 
shalt  bring  it  unto  thine  own  house,  and  it  shall  be  with  thee  until  thy  brother 
seek  after  it,  and  thou  shalt  restore  it  to  him  again." — Deuteronomy,  c.  xxii.  v.  1,  2. 

(a)  Grotius,  1.  ii.  c.  x. 
Puffendorff,  1.  iv.  c.  13. 

(b)  De  divers.  Reg.  Juris.  Leg.  ccvi.     And  so  Cicero  says :    "  Detrahere  igitur 
aliquid  alteri,  et  hominem  hominis  incommode  suum  augere  commodum,  magis  est 
contra  naturam,  quam  mors,  quam  paupertas,"  &c. — De  Offic.  1.  iii.  c.  v. 

(c)  Grotius,  ib.,  and  Heineccii  Prselect : — "Et  quae  sunt  alia  hujus  generis  ex- 
empla.    Innumera  enim  in  jure  universe,  maxime  in  materia  de  quasi  contractibus 
passim  occurrunt." 

(d)  It  is  the  doctrine,  however,  of  English  Law. 

(c)  Barbeyrac  on  Grotius,  t.  i.  1.  ii.  c.  x.  p.  391.  (note  4.) 
(/)  Dig.  1.  50.  17.  De  Div.  Reg.  Jur  Ant.  136. 

(g)  Barbeyrac  on  Puffendorf  De  Jure  Nat.  et  Gent.  1.  iy.  c.  xiii.  s.  3  Ibid,  on  Gro-/ 
tius,  de  Jure  B.  et  P.  1.  ii.  c.  x.  s.  2. 

(h)  Giinther,  vol.  ii.  p.  214.  (i)  Heffters,  73.  n.  1. 


242  PHILLIMORE    ON     INTERNATIONAL    LAW. 

G-rotius  and  Puffendorf,  is  obliged  in  his  commentary  on  Huber's  work(&) 
(De  Jure  Civitatis)  to  admit,  "  que,  quand  il  s'agit  de  voir  si  un  posses- 
seur  de  bonne  foi  s'est  enrichi  par  la  possession  de  la  chose  ineme,  ou  par 
la  joui'ssance  des  revenus  qui  en  proviennent,  c'est  un  examen  sujet  a  des 
difficultes  infinies,  et  dont  on  ne  peut  presque  venir  a  bout." 

CCXCII.  From  the  practice  of  nations  with  respect  to  this  matter  in 
time  of  peace  but  little  aid  is  to  be  borrowed  for  either  argument.  The 
13th  Article,  however,  of  the  Peace  of  Ryswick,  in  1697,  though  it  may 
be  said  more  properly  to  refer  to  indemnification  due  from  a  wrong-doer 
to  a  lawful  owner,  may  be  mentioned  here  :  "  Et  in  quantum,  per  aucto- 
ritatem  Domini  Regis  Christianissimi  Dominus  Rex  Magnae  Britanniae 
impeditus  fuerit,  quominus  frueretur  reditibus,  juribus  et  commodis  tarn 
principals  sui  Aransionensis  quam  aliorum  suorum  Dominiorum,  quae 
r*qiKT  Pos*  conclusum  Tractatum  *Neomagensem,  usque  ad  declara- 
J  tionem  praesentis  belli  sub  dominatione  praedicti  Regis  Christian- 
issimi fuerunt,  praedictus  Dominus  Rex  Christianissimus  Regi  Magnae 
Britanniae  restituit  et  restitui  efficiet  realiter  cum  effectu  et  cum  interesse 
debito,  omnes  istos  reditus,  jura  et  cornrnoda  secundum  declarationes  et 
verificationes  coram  dictis  Commissariis  faciendas."(/J 

CCXCIII.  Property  may  be  taken,  without  consent,  from  an  individual 
by  an  act  of  the  law,  and  a  valid  title  conveyed  to  another  owner;  so  by 
conquest  jure  victorice,  followed  by  treaty,  property  may  be  taken  from 
one  State  and  conveyed  to  another :  but  this  will  be  discussed  at  greater 
length  in  another  part  of  this  Work. 

CCXCIV.  Property  may  also  become  legally  extinct  by  suffering  a 
change  of  character,  by  being  placed  among  things  extra  commercium, 
as  will  be  explained  in  the  next  chapter. 


[*316]  "CHAPTER    XVII. 

SLAVES  AND  THE   SLAVE   TRADE. 

CCXCV.  There  is  a  kind  of  property  which  it  is  equally  unlawful  for 
States  as  for  Individuals  to  possess — property  in  men. 

A  being  endowed  with  will,  intellect,  passion,  and  conscience,  cannot 
be  acquired  and  alienated,  bought  and  sold  by  his  fellow  beings,  like  an 
inanimate  or  an  unreflecting  and  irresponsible  thing. (a) 

CCXCVI.  The  Christian  world  has  slowly  but  irrevocably  arrived  at 
the  attainment  of  this  great  truth;  and  its  sound  has  at  last  gone  out 
into  all  lands,  and  its  voice  into  the  ends  of  the  world. (i) 

!k~)  Barbeyrac  on  Grotius,  1.  ii.  c.  x.  p.  391.  (notis.) 
I)  Schmauss,  vol.  ii.  p.  1113. 
a)  "Si  vinxero  hominem  liberum  ita  ut  enum  possideam,  an  omnia  quseis  pos- 
sidebat,  ego  possideam  per  ilium?    Respondit  si  vinxeris  hominera  liberum  eum  te 
possidere  nonputo ;  quod  quum  ita  se  habeat  multo  minus  per  ilium  res  ejus  a  te 
possidebuntur  ;  neque  enim  rerum  natura  recipit,  ut  per  enum  aliquid  possidere 
possim  quern  civiliter  in  mea  potestate  non  habeo." — Dig.  xli.  2.  23.  2. 

(6)  "  J'ai  dit  que  d'apres  les  principes  de  1'ancienne  constitution  Romaine  la  pro- 


SLAVES    AND    THE    SLAVE    TRADE.  243 

International  Law  has  for  some  time  forbidden  the  captive  of  war  to 
be  sold  into  slavery.  Of  late  years  it  has  made  a  further  step;  it  now 
holds  that  the  colour  of  the  man  does  not  affect  the  application  of  the 
principle.  The  black  man  is  no  more  capable  of  being  a  chattel  than 
the  white  man.  The  negro  and  the  European  have  equal  rights;  neither 
are  *among  the  "respositse  in  commercio"  in  which  it  is  lawful 
for  States  or  individuals  to  traffic. (c) 

Let  ns  cast  our  eyes  for  a  moment  over  the  progress  of  International 
Jurisprudence  upon  this  subject,  for  upon  none  has  its  melioration  been 
more  striking,  or  more  advantageous  to  humanity.  It  may  be  considered, 
first,  with  respect  to  the  Slavery  of  the  White  Man;  and,  secondly,  with 
respect  to  the  Dark  or  Coloured  Man. 

CCXCVII.  First,  with  respect  to  the  White  Man.  Bynkershoek,(d) 
in  one  of  his  last  and  ablest  works,  maintains,  even  in  1737,  that  as  the 
conqueror  may  lawfully  do  what  he  pleases  with  the  conquered,  he  may 
lawfully  put  him  to  death :  but  the  right  he  admits  has  become  obsolete. 
A  corollary  to  this  absolute  power  of  life  and  death  over  enemies  is  the 
right,  according  to  this  author,  of  making  them  Slaves.  A  German 
potentate,  he  says,  who  served  in  the  British  Army  in  Ireland  in  1690, 
is  said  to  have  ordered  prisoners  to  be  transported  to  America,  for  the 
purpose  of  being  sold  as  Slaves,  and  to  have  been  only  deterred  by  a 
threat  of  the  Duke  of  Berwick,  Commander  of  the  French  Army  in  Ire- 
land, that,  as  a  retaliatory  measure,  he  would  send  all  his  prisoners  to 
the  galleys  in  France.  This  practice  he  also  admits  to  have  become 
obsolete  amongst  Christ ians.(e}  But  the  Dutch,  having  *them-  r*Qi«n 
selves  no  Slaves,  except  in  Asia,  Africa,  and  America,  are,  he  L 
observes,  in  the  habit  of  selling  the  Algerines,  the  Tunisians,  and  Tripo- 
litans,  whom  they  take  in  the  Atlantic  or  Mediterranean,  to  the  Spaniards 
as  Slaves. 

Bynkershoek  certainly  did  not,  by  his  rather  faint  acquiescence  in  the 
desuetude  of  the  custom  of  making  slaves,  advance  the  march  of  this 

pri6te  des  objets  les  plus  pre"cieux,  c'est-a-dire  des  choses  mancipi,  6tait  censdie  pro- 
yenir  de  I'e'tat.  Mais  les  Chretiens  n'avaient  jamais  cru  a  cette  hypothese — dans 
leurs  principes  la  terre  appartenait  a  Dieu  avec  tout  ce  qu'elle  contient." — Troplong, 
De  1'Infl.  du  Christ,  snr  le  Droit  Civil,  p.  121. 

(c)  "  Regula  ilia  juris  naturalis,  cognationem  inter  homines  quandam  esse  &  natura, 
&cproinde  nefas  esse  alterum  ab  altero  laedi." — Grotius,  1.  ii.  c.  xv.  5.  i. 

(d)  The  Quaestiones  Juris  Publici  appeared  in  ITS 7,  when  the  author  was  sixty- 
four  years  of  age  ;  he  died  in  1743.    The  doctrine  referred  to  in  the  text  is  to  be 
found  in  the  third  chapter  of  the  first  book. 

"  Item  ea  quae  ex  hostibus,  jure  gentium  statim  nostra  fiunt :  adeo  quidem  ut  et 
liberi  homines  in  servitutem  nostram  deducuntur :  qui  tamen,  si  evaserint  nostram 
potestatem,  et  ad  suos  reversi  fuerint,  pristinum  statum  recipiunt." — Instit.  1.  ii.  t. 
i.  17. 

(e)  "  Sed  quia,  ipsa  servitus  inter  Christianas  fere  exolevit  ea  quoque  non  utimur 
in  hostes  captos." — Ib. 

•'  Sic  enim  jus  gentium  de  servitute  captivorum  in  bello  justo,  in  ecclesia  muta- 
tum  est,  et  inter  Christianas  id  non  servatur." — Suarez,  De  Leg.  ac.  Deo  Legisl.  1. 
ii.  c.  xix. 

It  is  remarkable  that  the  very  able  dissertations  of  Suarez,  on  Natural,  Public, 
and  International  Law,  are  not  noticed  by  Grotius. 

See  same  reasoning  for  the  enfranchisement  of  bondmen  in  England,  Sir  Thomas 
Smith,  Commonwealth  of  England,  p.  137. 


244  PHILLIMORE    ON    INTERNATIONAL    LAW. 

sound  principle  of  International  Law.  G-rotius  had  long  ago  declared^ A 
that  Christendom  had  abolished  this  pretended  right,  as  directly  at  vari- 
ance with  the  doctrine  of  the  Founder  of  their  Religion,  and  remarked 
with  pious  and  just  exultation,  that  reverence  for  the  law  of  Christ  had 
produced  that  effect  for  which  the  teaching  of  Socrates  had  laboured  in 
vain.  To  this  prohibition  to  make  captives  slaves,  like  the  prohibition 
to  poison  the  enemy's  wells,  may  be  applied  his  emphatic  language  with 
respect  to  another  infamy, — the  violation  of  women, — language  which 
should  never  be  forgotten  by  those  who  aspire  to  render  any  contribution, 
however  humble,  to  the  great  fabric  of  International  Law(^) — "Atque 
id  inter  Christianos  observari  par  est,  non  tantum  ut  discipline  militaris 
partem,  sed  et  ut  partem  juris  Gentium." 

T*mQ"1      *CCXCVIII.  The  successful  efforts  made  by  Christian  Powers 
-I  to  emancipate  the  white  Christian  from  the  slavery,  to  which  the 
Infidel  Powers  of  the  Levant  had  too  frequently  consigned  them,  seem 
ta  claim  some  notice  in  this  place. 

Till  the  beginning  of  the  present  century  specific  Treaties  were  con- 
stantly concluded  between  the  European  and  Barbary  Powers,  binding 
the  latter  to  abstain  from  piratical  depredations,  to  restore  prisoners,  and 
to  conform  to  the  usages  of  the  civilised  world.  But  it  was  not  till  after 
the  pacification  of  the  world  in  1815(/t)  that  Great  Btitain  bestirred 
herself  to  the  accomplishment  of  that  glorious  enterprize  which  must  for 
ever  entitle  her  to  the  gratitude  of  Christendom.  Early  in  the  spring 
of  1816,  Lord  Exmouth,  the  British  Commander-in-Chief  in  the  Medi- 
terranean, received,  amongst  other  instructions,  the  order  to  procure,  if 
possible,  a  general  abolition  of  Christian  slavery  in  Barbary. 

Lord  Exmouth,  acting  in  obediance  to  these  instructions,  succeeded  in 
extracting  a  promise  from  the  Beys  of  Tunis  and  Tripoli,  that  they  would 
not,  for  the  future,  make  slaves  of  prisoners  of  war,  but  would  conform 
to  the  practice  of  European  nations. (i)  The  Dey  of  Algiers  pretended 
that  he  could  not  join  in  this  promise  without  the  permission  of  the 
Sultan,  whose  subject  he  was.  Shortly  afterwards,  outrages  were  com- 
mitted at  Algiers  upon  the  British  Consul,  and  at  Bona  upon  the  British 
flag,  and  abominable  cruelties  perpetrated  upon  divers  crews  of  fishing- 
boats  from  the  ports  of  Italy.  The  consequence  of  these  atrocities,  and 
of  the  Dey's  refusal  to  acquiesce  in  the  abolition  of  Christian  slavery, 

(/)  It  is  a  noble  passage,  worthy  of  its  illustrious  author: — "  Sed  et  Christianis 
in  universum  placuit,  bello  inter  ipsos  orto,  captos  servos  non  fieri,  ita  ut  vendi  pos- 
sint,  ad  operas  urgeri,  et  alia  pati  quae  servorumsunt:  merito  sane:  quia  ab  oranis 
caritatis  commendatore  rectius  instituti  erant,  aut  esse  debebant  quam  ut  a  mise- 
ris  homnibus  interficiendis  abduci  nequirent,  nisi  minoris  saevitiae  concessione. 
Atque  hoc  a  majoribus  ad  posteros  pridem  transiisse  inter  eos,  qui  eandem  reli- 
gionem  profiterentur,  scripsit  Gregoras,  nee  eorum  fuisse  proprium  qui  sub  Ro- 
mano imperio  viverent,  sed  commune  cum  Thessalis,  Illyriis,  Triballis,  et  Bulgaria. 
Atque  ita  hoc  saltern,  quanquam  exiguum  est,  perfecit  reverentia  Chrisliance  legis, 
quod,  cum  Graecis  inter  se  servandum  olim  disceret  Socrates,  nihil  impetraverat." — 
L.  iii.  c.  vii.  s.  9.  (g)  Lib.  iii.  c.  iv.  s.  19. 

(h)  Annual  Register  (for  1816),  vol.  Ixxxv.  c.  ix.  p.  97 ;  Appendix,  p.  230,  &c. 

(i)  De  M.  et  De  C.  t.  iii.  p.  263  :  "  Declaration  Du  Bey  de  Tripoli,  en  date  du  29 
Avril,  1816,  portant  que  1'esclavage  des  prisonniers  de  guerre  est  aboli.  Dans  les 
memes  termes  par  le  Bey  de  Tripoli,  17  Avril,  1816." 


SLAVES  AND  THE  SLAVE  TRADE.          245 

was  the  ever-memorable  bombardment  of  Algiers  by  the  British  fleet 
under  Lord  Exmouth,  gallantly  assisted  by  *a  Dutch  squadron 
under  Vice-Admiral  Capellen,  on  the  27th  of  August,  1816. 

The  destruction  of  nearly  half  Algiers,  and  of  the  whole  Algerine 
navy,  acheived  a  great  triumph  for  civilization  and  Christianity. 

The  Dey  consented — 

1.  To  the  abolition  for  ever  of  Christian  slavery. 

2.  To  deliver  to  the  British  Admiral  all  slaves  in  his  dominions,  to 
whatever  nation  they  might  belong,  before  the  noon  of  the  next  day. 

3.  To  deliver  at  the  same  time  all  money  received  for  the  redemption 
of  slavery  since  the  beginning  of  1816. 

4.  To  make  full  reparation  and  a  public  apology  to  the  British  Consul, 
as  will  be  mentioned  elsewhere. 

In  1830  the  French  took  possession  of  Algiers,  and  concluded  with 
Tunis  and  Tripoli  treaties  (9th  and  llth  August,  1830)  for  the  abolition 
of  Christian  slavery,  and  a  conformity  to  the  civilized  usages  of  commerce 
and  war. 

In  January,  1846,  the  Bey  of  Tunis  addressed  a  circular  to  the 
Consuls  of  Christendom,  announcing  the  abolition  of  slavery  throughout 
his  kingdom — an  act  which  surely  shames  the  slaveholding  states  of 
Christendom.  (Jc\ 

CCXCIX.  Secondly,  with  respect  to  the  slavery  of  the  Dark  or 
Coloured  Man.  Is  there  really  any  difference  in  principle  between  the 
two  cases  ?  Can  it  ever  have  been  a  sound  position  of  International 
Law,  that  a  rule  of  immutable  justice  and  eternal  right  was  rendered 
inapplicable  by  the  complexion  of  the  person,  the  region  in  which  he 
dwelt,  or  the  religion  which  he  professed  ?  At  all  events,  was  this  ever 
a  sound  position  of  Christian  International  Law  ?  The  question,  it  must 
be  admitted,  has  been  answered  in  the  affirmative  by  the  decision  of  the 
highest  Court  of  Justice,  both  in  England  and  North  America. 

*  According  to  Lord  Stowell,  trading  in  Slaves  was  neither 
piracy  nor  legally^  criminal.  It  was  sanctioned  by  ancient 
admitted  practice,  by  the  general  tenor  of  the  laws  and  ordinances,  by 
the  formal  transactions  of  civilized  States,  and  by  the  doctrine  of  the 
Courts  of  the  Law  of  Nations. 

All  this  was  undoubtedly  true :  but  might  not  all  these  reasons  have 
been  urged  at  one  time  in  favour  of  the  practice  of  selling  Christian 
captives  into  Slavery  ?  Was  there  not  a  time  when  the  practice  of 
nations  sanctioned  the  slaughter  of  captives  by  sword  or  poison,  and  the 
violation  of  women  in  time  of  war  ?(m)  Is  not,  pace  tanti  viri,  the 

(k]  De  M.  et  De  C.  t.  v.  p.  443. 

(I)  "  The  Le  Louis,"  2  Dodson's  Adm.  Rep.  p.  249.  It  should  be  observed  that 
this  judgment  was  delivered  in  1817.  It  was  in  1818  that  the  French  law  finally 
rendered  the  Slave  Trade  illegal. — Koch,  Hist,  des  Tr.  t.  iii.  p.  517. 

See,  however,  also  the  case  of  Madrazzo  v.  Willis,  in  the  Court  of  Queen's 
Bench,  Barnewell  and  Alderson's  Reports,  vol.  iii.  p.  353.  See  also  "  The  Ante- 
lope," Wheaton's  Reports  (American,)  vol.  x.  p.  66. 

(m)  "  Stupra  in  fceminas  in  bellis  possim  legas  et  permissa  et  impermissa ; 
atque  hoc  posterius  jus  est  gentium  non  omnium,  sed  meliorium." — L.  iii.  c.  iv.  19. 

"  Nee  tempore  ullo  excluditur  potestas  occidendi  tales  servos,  id  est  bello  captos, 


246  PHILLIMORE    ON    INTERNATIONAL    LAW. 

real  question  whether  if  the  Slave  Trade  be  a  crime,  any  usage,  however 
general,  can  alter  its  character  ?  Are  not  Natural  and  Revealed  Law 
the  primary  sources(w)  of  International  Jurisprudence  ;  and  though  it 
be  true  that  much  which  they  in  the  abstract  simply  permit(p\  is  limited 
or  disallowed  by  the  mutual  practice  of  nations,  could  that  practice  sanc- 
[-,,099-1  tion  what  the  *Natural  and  Religious  Law  had  absolutely  for- 
-I  bidden  ?(p)  Could  a  Municipal  Law  sanction  homicide  or 
adultery?  When  Grrotius  treats  of  the  liability  which  jure  gentium  the 
goods  of  subjects  incur  of  being  seized  by  the  enemy  of  their  Sovereign, 
he  observes,  that  this  liability  is  not  imposed  by  a  rule  of  Natural,  but 
of  International  Law,  which  latter  cannot,  in  this  respect,  be  said  to  be 
at  variance  with,  but  rather  additional  to  the  former,^)  "  non  autem  hoc 
naturae  repugnat,  ut  non  more  et  tacito  consensu  induci  potuerit."  Can 
this  be  predicated  of  the  Slave  Trade  ?  »  No  nation,"  Lord  Stowell 
says,(r)  "can  privilege  itself  to  commit  a  crime  against  the  Law  of 
Nations  by  a  mere  municipal  regulation  of  its  own."  Can  nations 
collectively  privilege  themselves  to  commit  a  crime  against  the  law  of 
nature,  and  of  Nature's  G-od?  That  it  was  a  crime,  Lord  Stowell  thought  ; 
for  in  a  yet  later  judgment,(s)  the  most  questionable,  perhaps,  which  he 
ever  delivered,  he  said,  "  it  is  in  a  peculiar  manner  the  crime  of  this 
country." 

CCC.  The  judgment  of  Lord  Stowell  in  the  «  Le  Louis"  was  delivered 
in  1817.  Since  that  period  International  Law  has,  on  this  subject, 
advanced  towards,  if  it  have  not  yet  reached  the  elevation  of  Natural 
and  Revealed  Law. 

The  tide  which  had  begun  to  flow  when  that  eminent  judge  adorned 
the  seat  of  International  Justice  has  ever  since  set  steadily  onwards  j 
and  were  he  now  alive,  he  must  admit  that  the  Slave  Trade,  tried  by 
some  of  his  own  criteria,  measured  by  "  the  legal  standard  of  morality,  "(<) 
is  now  a  violation  of  International  Law,  if  it  be  not,  strictly  speaking, 
Piracy. 

..#090-1       *By  general  practice,  by  treaties,  by  the  laws  and  ordinances 
J  of  civilized  States,  as  well  as  by  the  immutable  laws  of  eternal 

quantum  ad  jus  gentium  pertinet;  etsi  legibus  civitatum  hie  magis,  illis  minus 
adstringitur."  —  L.  iii.  c.  iv.  s.  x.  2. 

"Jus  gentium,  si  non  omnium,  certe  meliorum,  jam  olim  est,  ne  hostem  veneno 
interficere  liceat."  —  L.  iii.  c.  ir.  s.  15. 

It  is  true  that  Grotius  says:  "Sicut  autem  jus  gentium  permittit  multa,  eo  per- 
mittendi  modo  quern  jam  explicavimus,  quae  jure  naturae  sunt  vetita,  ita  quaedem 
vetat  permissa  jure  naturae."  —  L.  iii.  c.  iv.  s.  xv.  :  cf.  1.  iii.  c.  ii.  1  :  1.  ii.  c.  xvii.  s. 
xix.  ;  1.  iii.  c.  i.,  s.  i.  ;  1.  ii.  c.  iii.  s.  x. 

(n\  See  Third  Chapter  of  this  Work. 

(o)  "  Sed  multa  quae  natura  permittit,  jus  gentium  ex  communi  quodam  con- 
sensu potuit  prohibere."  —  Grotius,  1.  ii.  c.  iii.  s.  x.  3. 

(p)  "  Jedder  Handel  und  Verkehr,  welcher  den  algemeinen  Menschenrechten 
zuwiderlauft,  ist  geachtet.  Niemand  begeht  ein  Unrecht,  wer  ihn  stOrt  oder 
veruichtet.  —  Dies  ist  ist  das  Gesetz  des  Sclavenhandels."  —  Heffters,  s.  xxxii. 


(q)  L.  iii.  c.  ii.  s.  ii.  2. 

( 

( 

(t)  "TheLe  Louis,"  p.  249 


.      .    .     .    .     .    . 

)  "The  Le  Louis,"  2  Dodson's  Adm.  Rep.  p.  251. 

)  "  The  Slave  Grace,"  2  Haggard's  Adm.  Rep.  p.  128. 


SLAVES  AND  THE  SLAVE  TRADE.          247 

justice,  it  is  now  indelibly  branded  as  a  legal  as  well  as  a  natural 
crime. (M) 

CCCI.  The  eight  powers  who  signed  the  Treaty  of  Paris  (1814)  en- 
gaged to  exert  themselves  for  the  suppression  of  this  grievous  sin,  and  by 
an  additional  article  at  the  Congress  of  Vienna,(o:)  bound  themselves  to 
take  the  most  efficacious  measures  for  securing  the  entire  and  definitive 
abolition  of  "  a  scourge  which  has  so  long  desolated  Africa,  degraded 
Europe,  and  afflicted  humanity."^) 

CCCII.  By  the  first  additional  article  to  the  Treaty  of  Paris  (1814) 
France  "  unreservedly  participating  in  the  sentiment  of  England,  with 
respect  to  a  species  of  commerce  opposed  to  the  princi^>les  of  natural 
justice,  and  to  the  enlightened  opinions  (lumieres}  of  our  time,"  engaged 
to  co-operate  *heartily  in.putting  down  the  Slave  Trade. (2)  In  r^oo^-i 
1818  a  royal  ordinance  carried  this  resolution  into  practical  effect.  L 
By  treaties  in  1831  and  1833,  Great  Britain  and  France  mutually  con- 
ceded to  each  other  the  right  of  search  of  suspected  vessels  within  cer- 
tain localities :  by  these  treaties  the  captured  vessel  was  to  be  brought  in 
and  tried  before  the  court  of  the  country  to  which  it  belonged.  France 
would  not,  however,  consent  that  her  subjects  should  be  amenable  to  a 
mixed  Commission  Court,  such  as,  in  the  case  of  Sweden,  the  Nether- 
lands, and  Portugal,  had  been  established  by  Treaty  with  Great  Britain. 
In  May,  1845,  a  fresh  convention  was  entered  into  between  France  and 
Great  Britain,  by  which  each  country  engaged  to  keep  twenty-two  cruis- 
ers :  but  at  a  conference  held  in  London,  in  May,  1849,  the  number  was 
diminished  to  twelve,  with  a  condition  that,  if  hereafter  requisite,  the 
number  should  again  be  increased. (a) 

CCCIII.  With  regard  to  Spain,  it  was  not  till  June,  1835,  that  a 
Treaty  was  concluded  with  Great  Britain,  which  really  made  effectual 
the  engagements  of  a  Treaty  in  1817.  In  1853,  a  select  committee  of 
the  House  of  Commons  reported:  "The  Brazilian  Government  have 
rendered  any  such  measure  unnecessary,  so  far  as  regards  Brazil ;  but  as 
regards  Cuba,  it  is  a  matter  of  great  surprise,  that  whilst  Spain  is  at  this 

(M)  Koch,  Hist,  des  Tr.  torn.  iii.  pp.  427,  432,  516,  533,  562,  570,  contains  a  use- 
ful summary  of  the  Slave  Trade  from  its  commencement  in  1503  to  1815. 

Colquhoun's  Civil  Law,  p.  390,  s.  413,  p.  423,  s.  476.  History  of  the  British 
Slave  Trade. 

(x)  De  M.  et  De  C.  t.  iii.  p.  476. 

Report  of  the  House  of  Lords  respecting  the  African  Slave  Trade,  July  23,  1849. 

Report  of  the  Select  Committee  of  the  House  of  Commons  on  the  Slave  Trade 
Treaties,  August  12,  1853. 

"  Whereas  that  criminal  traffic  is  still  carried  on."  Treaty  of  "Washington, 
August,  1842,  between  Great  Britain  and  the  United  States. 

"  Dont  le  traffic  honteux  a,  durant  des  siecles,  fait  gemir  rhumanite'." — Martens, 
s.  150,  b. 

"  In  voller  und  gerechter  Anerkennung  der  Gesinnungen  und  Grundsatze 
christlicher  Menschenliebe,  zur  ganzlichen  Ausrottung  dieses  verbrecherischen  Han- 
dels  mitzuwirken  solle  der  Negerhandel  gleich  der  Seerduberei  bestraft,"  u.  s.  w. 
Resolution  of  the  German  Confederation,  June  19,  1845. 

De  M.  et  De  C.  t.  v.  p.  30. 

(y)  Koch,  Hist,  des  Tr.  t.  iii.  p.  428,  mentions  that  Denmark,  as  early  as  1794, 
passed  an  ordinance  for  the  abolition  of  Slavery  In  her  Colonies  after  a  lapse  of 
ten  years  ;  that  it  took  effect  in  1804,  but  was  not  notified  to  other  States. 

(z)  De  M.  et  De  C.  t.  iii.  p.  20.  (a)  Hertslet's  Treatise,  vol.  viii.  p.  1061-4. 


248  PHIL  LI  MORE    ON    INTERNATIONAL    LAW. 

time  indebted  to  England  and  France  for  their  efforts  to  form  a  tripartite 
convention  with  the  United  States,  in  order  to  protect  Cuba  from  pirati- 
cal attacks,  the  Government  of  Spain  should  not  take  warning  from  the 
fact  that  one  of  the  reasons  alleged  by  the  Government  of  the  United 
States  for  not  joining  that  Convention,  is  the  continuance  of  the  Slave 
Trade  in  that  island." 

Mr.  Everett,  in  his  letter,  dated  Washington,  1st  December,  1852,  to 
r^ooK-i  Mr.  Crampton,  the  British  Minister  at  *Washington,  writes:  "I 
-I  will  but  allude  to  an  evil  of  the  first  magnitude,  I  mean  the 
African  Slave  Trade,  in  the  suppression  of  which  England  and  France 
take  a  lively  interest,  an  evil  which  still  forms  a  great  reproach  upon  the 
civilization  of  Christendom,  and  perpetuates  the  barbarism  of  Africa; 
but  for  which,  it  is  to  be  feared,  there  is  no  hope  of  a  complete  remedy, 
while  Cuba  remains  a  Spanish  colony ."(i) 

CCCIV.  The  treaties  of  Portugal  with  Great  Britain  of  1810,  1815, 
1817  (which  last  conceded  the  right  of  reciprocal  search},  of  1825,  fol- 
lowed by  an  official  note  from  Portugal  in  1826,  acknowledged  the  obli- 
gation and  necessity  of  suppressing  the  Slave  Trade,  but  were  neverthe- 
less ineffectual  for  this  purpose  throughout  the  Portuguese  Colonies. 
In  1839,  a  British  Act  of  Parliament  was  passed,  authorising  British 
cruisers  to  seize  Portuguese  vessels  suspected  to  be  Slavers.  This  Act 
has  been  vehemently  attacked  as  a  violation  of  International  Law;(c)  it 
must  of  course  be  considered  with  reference  to  the  previous  Treaties. 
But  whatever  may  be  the  correct  decision  upon  this  point,  by  a  Treaty  in 
July,  1842,  followed  by  additional  articles  in  October,  a  mutual  right  of 
search  and  courts  of  mixed  commission  have  been  conceded. 

Similar  conventions  exist  between  the  Netherlands  and  Great  Britain, 
the  last  being  in  February,  1837. 

CCCV.  Great  Britain  has  entered  into  various  negotiations  with  the 
United  States  of  North  America,  having  for  their  object  the  suppression 
of  the  Slave  Trade ;  but  they  have  not  been  successful  in  inducing  the 
United  States  to  join  in  a  league  with  other  Powers  for  this  object :  the 
utmost  that  has  been  obtained  is  to  be  found  in  the  Treaty  of  Washing- 
ton, in  August,  1842,  by  which  each  Power  is  to  maintain  a  naval 
force  on  the  coast  of  Africa,  and,  if  both  Governments  so  order,  to  act 
**n  concer*  w*tn  each  other,  and  to  use  their  efforts  to  induce 
the  African  States,  that  allow  Slave  Markets,  to  close  them. 

The  question  of  the  Right  of  Visit  has  been  a  matter  of  sore  contention 
between  Great  Britain  and  the  North  American  United  States :  the  lat- 
ter refuse  to  distinguish  it  from  the  Right  of  Search,  which,  they  justly 
say,  is  an  exclusively  belligerent  Right.  The  British  Government,  on 
the  other  hand,  denies  the  identity  of  the  two  Rights,  and  claims  merely 
to  ascertain  the  nationality  of  ships  hoisting,  under  suspicious  circum- 
stances, the  flag  of  the  United  States,  alleging  that  when  once  that  nation- 
ality is  ascertained  to  be  that  of  the  United  States,  they  immediately  re- 
lease, whatever  be  her  cargo  or  destination,  the  vessel ;  and  that  it  is 

(b)  Vide  post,  note. 

(c)  Wheaton's  Hist.  p.  605.     De  II.  et.  De  C.  t,  T.  p.  442. 


SLAVES  AND  THE  SLAVE  TRADE.         249 

manifest,  that  if  the  mere  hoisting  a  particular  ensign(d)  is  to  supersede 
all  inquiry,  the  Slave  Trade  may  be  carried  on  with  impunity.(e) 

CCCVI.  Upon  this  subject,  perhaps,  the  stipulations  in  the  Treaty  of 
May,  1845,  between  Great  Britain  and  France,  two  Powers  as  jealous  as 
any  that  exist  of  national  honour  and  national  right,  may  be  cited  as 
most  fair,  reasonable,  and  worthy  of  imitation.(/)  The  Eighth  Article 
of  that  Treaty  is  as  follows  : — 

"  Whereas  experience  has  shown  that  the  traffic  in  Slaves,  in  those 
parts  of  the  world  where  it  is  habitually  carried  on,  is  often  accompanied 
by  acts  of  piracy  dangerous  to  the  tranquillity  of  the  seas  and  to  the 
safety  of  all  flags :  and  considering  at  the  same  time  that  if  the  flag  car- 
ried by  a  vessel  be  prima  facie  evidence  of  the  national  character  of 
*such  vessel,  this  presumption  cannot  be  considered  as  sufficient 
to  forbid  in  all  cases  the  proceeding  to  the  verification  thereof, 
since  otherwise  all  flags  might  be  exposed  to  abuse,  by  their  serving  to 
cover  piracy,  the  Slave  Trade,  or  any  other  illegal  traffic,  it  is  agreed,  iu 
order  to  prevent  any  difficulty  in  the  execution  of  the  present  Conven- 
tion, that  instructions,  founded  on  the  Law  of  Nations  and  on  the  con- 
stant usage  of  maritime  powers,  shall  be  addressed  to  the  commanding 
officers  of  the  British  and  French  squadrons  and  stations  on  the  coast  of 
Africa.  The  two  Governments  have  accordingly  communicated  to  each 
other  their  respective  instructions,  which  are  annexed  to  this  Conven- 
tion." 

Among  other  instructions  to  the  cruisers  were  the  following  upon  the 
delicate  question  of  visit. 

11  You  are  not  to  capture,  visit,  or  in  any  way  interfere  with  vessels 
of  France,  and  you  will  give  strict  instructions  to  the  commanding  officers 
of  cruisers  under  your  orders  to  abstain  therefrom.  At  the  same  time 
you  will  remember  that  the  King  of  the  French  is  far  from  claiming  that 
the  flag  of  France  should  give  immunity  to  those  who  have  no  right  to 
bear  it,  and  that  Great  Britain  will  not  allow  vessels  of  other  nations  to 
escape  visit  and  examination  by  merely  hoisting  a  French  flag,  or  the 
flag  of  any  other  nation,  with  which  Great  Britain  has  not  by  existing 
Treaty  the  right  of  search.  Accordingly,  when  from  intelligence  which 
the  officer  commanding  Her  Majesty's  cruiser  may  have  received,  or 
from  the  manoeuvres  of  the  vessel,  or  other  sufficient  cause,  he  may  have 
reason  to  believe  that  the  vessel  does  not  belong  to  the  nation  indicated 
by  her  colours,  he  is,  if  the  state  of  the  weather  will  admit  of  it,  to  go 
a-head  of  the  suspected  vessel,  after  communicating  his  intention  by 
hailing,  and  to  drop  a  boat  on  board  of  her  to  ascertain  her  nationality, 
without  causing  her  detention,  in  the  event  of  her  really  proving  to  be  a 
vessel  of  the  nation,  the  colours  of  which  she  has  displayed,  and  there- 

(d)  This  fact  appears  to  be  fully  admitted  in  the  Treaty  of  Washington,  9th 
article.     "Whereas,  notwithstanding  all  efforts  which  may  be  made  on  the  coast 
of  Africa  for  suppressing  the  Slave  Trade,  the  facilities  for  carrying  on  that  traffic 
and  avoiding  the  vigilance  of  cruisers  by  the  fraudulent  use  of  flags,  is  so  great"  &c. 

(e)  Wheaton's  Hist.  s.  33,  34,  pp.  585,  749.    The  subject  is  very  elaborately 
discussed. 

(/)  De  M.  et  De  C.  t.  v. 

AUGUST,  1854. — 17 


250  PHILLIMORE     ON     INTERNATIONAL    LAW. 


r*Q9»T  ^ore  one  wbich  he  ig  n0^  authorized  to  search  ;  but  should  *the 
-1  strength  of  the  wind  or  other  circumstance  render  such  mode  of 
visiting  the  stranger  impracticable,  he  is  to  require  the  suspected  vessel 
to  be  brought  to,  in  order  that  her  nationality  may  be  ascertained,  and 
he  will  be  justified  in  enforcing  it  if  necessary,  understanding  always 
that  he  is  not  to  resort  to  any  coercive  measure  until  every  other  shall 
have  failed;  and  the  officer  who  boards  the  stranger,  is  to  be  instructed 
merely  in  the  first  instance  to  satisfy  himself,  by  the  vessel's  papers  or 
other  proof,  of  her  nationality,  and  if  she  prove  really  to  be  a  vessel  of 
the  nation  designated  by  her  colours,  and  one  which  he  is  not  authorised 
to  search,  he  is  to  lose  no  time  in  quitting  her,  offering  to  note  on  the 
papers  of  the  vessel  the  cause  of  his  having  suspected  her  nationality,  as 
well  as  the  number  of  minutes  the  vessel  was  detained  (if  detained  at  all) 
for  the  object  in  question  ;  such  notation  to  be  signed  by  the  boarding 
officer,  specifying  his  rank  and  the  name  of  Her  Majesty's  cruiser,  and 
whether  the  commander  of  the  visited  vessel  consent  to  such  notation  on 
the  vessel's  papers  or  not  (and  it  is  not  to  be  done  without  his  consent  :) 
all  the  said  particulars  are  to  be  immediately  inserted  in  the  log-book  of 
Her  Majesty's  cruiser,  and  a  full  and  complete  statement  of  the  circum- 
stances is  to  be  sent,  addressed  to  the  Secretary  of  the  Admiralty,  by  the 
first  opportunity  direct  to  England,  and  also  a  similar  statement  to  you 
as  senior  officer  on  the  station,  to  be  forwarded  by  you  to  our  secretary, 
accompanied  by  any  remarks  you  may  have  reason  to  make  thereon. 
The  commanding  officers  of  Her  Majesty's  vessels  must  bear  in  mind 
that  the  duty  of  executing  the  instruction  immediately  preceding,  must 
be  discharged  with  great  care  and  circumspection.  For  if  any  injury  be 
occasioned  by  examination  without  sufficient  cause,  or  by  the  examina- 
tion being  improperly  conducted,  compensation  must  be  made  to  the 
party  aggrieved  ;  and  the  officer  who  may  cause  an  examination  to  be 
made  without  sufficient  cause,  or  who  may  conduct  it  improperly,  will 
incur  the  displeasure  of  Her  Majesty's  Government.  Of  course,  in 
cases  WQen  the  suspicion  *of  the  commander  turns  out  to  be  well 
founded,  and  the  vessel  boarded  proves,  notwithstanding  her 
colours,  not  to  belong  to  the  nation  designated  by  those  colours,  the 
commander  of  Her  Majesty's  cruiser  will  deal  with  her  as  he  would 
have  been  authorised  and  required  to  do  had  she  not  hoisted  a  false 
flag." 

At  the  Congress  of  Vienna  in  1815,  of  Aix-la-Chapelle  in  1818,  of 
Verona  in  1822,  the  abolition  of  the  Slave  Trade  as  a  principle  of  Pub- 
lic Law  was  formally  adopted. 

Since  these  periods  the  principle  has  been  carried  into  execution  by 
Special  Treaties^)  between  Great  Britain  and  the  different  States  of 
Christendom,  both  in  the  new  and  the  old  world,  and  also  with  various 
Heathen  potentates  on  the  southern  coast  of  Africa.  Many  countries 
have  stamped  the  character  of  piracy  upon  this  horrible  traffic,  so  far  as 
the  authority  of  their  own  Municipal  Laws  may  extend.  When  the 

(g)  "Us  (that  is,  these  Congresses)  ont,  enprincipe,  adopte  son  abolition  ;  depuis 
des  traite"s  particuliers  sont  venus  donner  la  vie  a  la  lettre  morte  du  principe,  et 
fonder  le  droit  international,"  —  De  M.  et  De.  C.  t.  v.  p.  437  :  Traite".des  Noirs. 


SLAVES  AND  THE  SLAVE  TRADE.         251 

Brazilian  Empire  became  separated  from  Portugal,  it  acknowledged  itself 
bound  by  the  Treaties  of  the  latter  kingdom ;  but  the  Treaties  favourable 
to  the  abolition  of  the  Slave  Trade  met  with  much  opposition  in  the 
new  kingdom.  In  November,  1826,  the  Brazils  adopted  the  Portuguese 
Treaty  with  Great  Britain,  of  1817  :  and  in  1835  two  articles  were  added 
to  it ;  but  the  trade  continued  nevertheless.  In  August,  1845,  a  British 
Act  of  Parliament  (8  &  9  Victoria,  c.  122,)  was  passed,  declaring  Bra- 
zilian slavers  justiciable  in  the  British  Courts  of  Admiralty.  Against 
this  act  the  Brazilian  Government  formally  protested,  as  a  violation  of 
International  Law.(/t) 

But  whoever  will  read  the  correspondence  between  Lord  Aberdeen, 
the  then  English  Foreign  Minister,  with  the  *Brazilkm  Govern- 
ment  in  1845,  will  be  satisfied  that  the  charge  is  unfounded. (t) 
A  great  and  most  beneficial  change  has  since  that  period  taken  place  in 
the  councils  and  policy  of  the  Brazilian  Empire,  such  as,  if  persisted  in, 
as  there  is  every  reason  to  suppose  will  be  the  case,  leaves  nothing  to 
desire  on  the  part  of  the  British  Government. 

In  December,  1841,  Austria,  Prussia,  and  Russia,  the  only  great 
Powers  who  had  not  before  that  period  entered  into  Conventions  on  this 
subject,  concluded  a  Treaty,  which  was  ratified  in  February,  1842,  which 
placed  the  Slave  Trade  in  the  category  of  Piracy,  and  by  which  they 
bound  themselves  to  exert  every  effort  for  the  repression  of  this  abomi- 
nable offence. 

CCCVII.  If  Great  Britain  was  deeply  dyed  by  her  assiento  contract 
and  her  colonial  slavery  in  this  accursed  commerce,  her  worst  enemies 
must  admit,  that  she  has,  since  the  beginning  of  this  century,  been  in- 
defatigable in  her  efforts  to  wipe  away  the  stain.  She  has  made  it  "her 
own  cause/'  to  borrow  the  expression  of  the  greatest  foreign  publicists 
of  our  day.(.&)  Nor  can  the  disinterested  character  of  her  righteous 
exertions  be  denied,  since  the  statute  of  the  3d  &  4th  William  IV.  c.  73, 
by  which  she  has,  at  no  small  risk,  and  with  no  common  amount  of 
pecuniary  sacrifice,  abandoned  domestic  slavery  in  her  colonies. 

To  be  cognizant  of  the  Treaties(Z)  entered  into  between  *Great  r^oo-i-i 
Britain  and  other  States,  is  to  be  apprized  of  all  that  have  been  L 
concluded  upon  this  subject ;  to  know  their  contents  is  to  be  acquainted 
with  the  international  history  of  the  abolition  of  the  Slave  Trade. 

^ 

(A)  Vide  post,  the  case  of  the  Crown  v.  Da  Serva ;  the  date  of  the  last  trial  is 
February,  1845. 

(f)  Report  from  the  Select  Committee  of  the  House  of  Commons  on  the  Slave 
Trade  Treaties,  August,  12,  1853. 

(A)  De  M.  et  De.  C.,  "  sa  propre  cause,"  t.  v.  p.  440,  and  elsewhere. 

(Z)  "  Depuis  cette  epoque,  les  efforts  du  Cabinet  de  Saint-James  ont  ele*  inces- 
sants ;  ils  ont  e"te  (en  point  de  droit  du  moins)  couronnes  par  le  succes :  si  la  traite 
n'a  pas  entitlement  disparu,  le  principe  de  son  abolition,  toutefois,  a  etc  generale- 
ment  adopte" :  il  est  inscrit  desormais  dans  le  code  des  nations  chr6tiennes,  qui, 
toutes,  ont  fle'tri  un  trafic  reprouve"  par  1'humanite,  la  morale  et  la  philanthropic, — 
trafic  exerce"  trop  souvent  avec  une  cruaute"  inouie  et  avec  un  barbare  me"pris  pour 
la  race  humaine, — trafic  auquel  les  progr6s  de  la  civilisation  devaient  fixer  un 
terme,  dut  sa  suppression  devenir,  pendant  quelque  temps,  une  cause  de  souff- 
rance  pour  les  colonies  dans  leur  culture  et  leur  prosperity." — De  M.  et  De  C.  t.  v. 
p.  436. 


252 


PHILLIMORE     ON    INTERNATIONAL    LAW. 


The  Catalogue  of  them  is  as  follows. (m) 


1814.  January  14 

—  March  30 

—  August  28 

1815.  January  22 

—  February  8 

1817.  July  28 

—  September  23 

1818.  May  4 

1822.  November  28 

—  December  10 

—  December  31 

1823.  January  25 

1824.  November  6 

1825.  February 

—  April  18 

1826.  Octobers 

—  November  23 

—  December  26 
1831.  November  30 

1833.  March  22 

1834.  July  26 

—  August  4 

—  December  8 

1835.  June  28. 

1837.  February  7 
— *•     June  5 

[*332]*-     June9 

—  November  24 

1838.  February  14 

1839.  January  19 

—  March  25 

—  May  24 

—  July  13 

—  December  17 

—  December  23 

1840.  September  25 

—  December  16 

1841.  February  24 

—  August  7 

—  December  20 

1842.  February  19 

—  July  3 

—  August  9 
1845.  May  29 
1846. 

1848.  April  24 

—  September  4 

—  September  6 

1849.  August  1 

1850.  April  2 


Treaty  of  Peace  with  Denmark. 
"  "  France. 

"  "  Spain. 

"  "  Portugal. 

Declaration  signed  at  the  Congress  of  Vienna. 
Treaty  with  Portugal. 
Spain. 

"  Netherlands. 

Declaration  signed  at  the  Congress  of  Verona. 
Treaty  with  Spain  (supplementary  article  to  the  Treaty  of 

September,  23,  1817.) 
Treaty  with  the  Netherlands  (additional  article  to  the 

Treaty  of  May  4,  1818.) 
Treaty  with  the  Netherlands. 

"  Sweden. 

"  Buenos  Ayres  or  Rio  de  la  Plata. 

"  Columbia  (since  divided  into  three  Republics, 

New  Grenada,  Equator  and  Venezuela.) 
Treaty  with  Portugal   (engagement   of  Portugal  by  an 

official  Note  sent  to  the  English  ambassador  at  Lisbon.) 
Treaty  with  Brazil. 

"  Mexico. 

"  France. 

"  France. 

"  Denmark  (her  accession  to  the  conventions  of 

1831  and  1833.) 
Treaty  with  Sardinia  (ditto.) 

"  Ditto   (additional    article  to  the  Treaty   of 

August  8.) 
Treaty  with  Spain. 

«  The  Netherlands. 

"  The  Confederation  of  Peru,  Bolivia. 

Treaty  with  the  Hanseatic  Towns  (accession  to  the  con- 
vention of  1831  and  1833.) 
Treaty  with  Tuscany  (ditto.) 

«  Two  Sicilies  (ditto.) 

"  Chili. 

"  Venezuela. 

"  Rio  de  la  Plata. 

"  Uruguay  (ratified  January  21,  1842.) 

Treaty  with  the  Imaum  of  Muscat. 

"  Hayti  (accession  to  the  conventions  of  1831 

and  1833.) 
Treaty  with  Bolivia. 

"  Texas. 

"  Mexico. 

"  Bolivia. 

"  Austria,  Prussia,  and  Russia  (ratified  Feb- 

ruary 19,  1842). 
(See  December  20,  1841.) 
Treaty  with  Portugal. 

"  The  United  States. 

"  France. 

11  The  King  and  the  Chiefs  of  Cape  Mount  (in 

Africa.) 
Treaty  with  Belgium. 

"  Equator. 

"  Muscat. 

Arabs  in  the  Persian  Gulf. 

"  New  Granada. 


(m)  De  M,  et  De  C.  t.  v.  p.  440. 


SLAVES    AND    THE    SLAVE    TRADE.  253 

The  whole  matter  is  thus  summed  up  in  the  Report  of  the  recent  Com- 
mittee of  the  house  of  Commons :(«) — 

"  The  attention  of  your  Committee  has  been  directed,  by  the  instruc- 
tions of  the  House,  chiefly  to  the  state  of  the  Slave  Trade  in  the  Bra- 
zils and  in  Cuba;  in  the  Colonial  possessions  of  Portugal,  Mozambique 
on  the  east,  and  Loanda  and  Angola  on  the  "West  Coast  of  Africa  ;  and 
they  have  also  briefly  inquired  into  the  state  of  the  other  parts  of  the 
West  Coast  of  Africa,  long  the  principal  seats  of  the  Slave  Trade. 

"  The  great  interest  which  the  people  of  this  country  have  r-^qqqi 
*taken  in  the  abolition  of  the  Slave  Trade,  appears  in  the  very  L 
volumious  details  laid  annually  before  Parliament  since  the  year  1815  ; 
and  the  Reports  of  both  Houses  of  Parliament  in  the  years  1849-50 
have  rendered  it  needless;  in  the  opinion  of  your  Committee,  to  pursue 
the  inquiry  beyond  the  last  three  years. 

"By  these  Reports,  it  appers  that  there  were,  in  1849-50, twenty-four 
treaties  in  force,  between  Great  Britain  and  foreign  civilized  Powers,  for 
the  suppression  of  the  Slave  Trade ;  ten  of  which  give  the  right  of 
search  and  mixed  courts ;  twelve  give  the  right  of  search  and  national 
tribunals ;  and  two  (with  the  United  States  and  France)  grant  no  right 
of  search,  but  do  contain  a  mutual  obligation  to  maintain  squadrons  on 
the  Coast  of  Africa.  There  were  also  at  that  time  forty-two  treaties  for 
the  suppression  of  the  Slave  Trade  existing  between  Great  Britain  and 
native  chiefs  on  the  Coast  of  Africa. 

"  Since  May,  1850,  two  treaties  have  been  concluded  with  civilized 
Governments,  under  which  captured  vessels  are  to  be  adjudicated  upon 
by  tribunals  of  their  own  countries;  and  twenty-three  more  treaties  with 
native  chiefs  of  Africa  for  the  suppression  of  the  Slave  Trade."  (o) 

CCCVIII.  Nevertheless,  the  English  Law  does  not  yet  hold  Slave- 
trading  to  be  jure  gentium  Piracy,  and  the  case  which  is  about  to  be 
cited,  gave  a  very  extraordinary  proof  of  the  jealousy  with  which  it 
regards  any  invasion  of  the  strictest  provisions,  both  of  International  and 
Municipal  Law,  even  when  the  lives  not  only  of  British  subjects,  but  of 
British  oflBcers  and  seamen,  are  concerned. 

"  On  the  26th  February,  1845,  Felicidade(p)  a  Brizilian  schooner, 
fitted  up  as  a  slaver,  surrendered  to  the  armed  boats  of  H.  -M.  S.  Wasp. 
She  had  no  slaves  on  board.  The  *captain  and  all  his  crew, 
except  Majavel  and  three  others,  were  taken  out  of  her  and  put 
on  board  the  Wasp.  On  the  27th  February  the  three  others  were  taken 
out  and  put  on  board  the  Wasp  also.  Cerqueira,  the  captain,  was  sent 
back  to  the  Felicidade,  which  was  then  manned  by  sixteen  British  sea- 
men, and  placed  under  the  command  of  Lieutenant  Stupart.  The  lieu- 
tenant was  directed  to  steer  in  pursuit  of  a  vessel  seen  from  the  Wasp, 
which  eventually  turned  out  to  be  the  Echo,  a  Brazilian  brigantine,  hav- 
ing slaves  on  board,  and  commanded  by  Serva,  one  of  the  prisoners. 
After  a  chase  of  two  days  and  nights,  the  Echo  surrendered,  -and  was 

in)  Vide  post,  note, 
o)  Vide  post,  note. 
p)  The  Queen  v.  Serva  and  others,  Denison's  Crown  Cases  Reserved,  vol.  i. 
(1844-1850)  p.  104. 


254        PHILLIMORE     ON     INTERNATIONAL     LAW. 

then  taken  possession  of  by  Mr.  Palmer,  a  midshipman,  who  went  on 
board  her,  and  sent  Serva  and  eleven  pf  the  crew  of  the  Echo  to  the 
Felicidade.  The  next  morning  Lieutenant  Stupart  took  command  of 
the  Echo,  and  placed  Mr.  Palmer  and  nine  British  seamen  on  board  the 
Felicidade  in  charge  of  her  and  of  the  prisoners. 

"  The  prisoners  shortly  after  rose  on  Mr.  Palmer  and  his  crew,  killed 
them  all,  and  ran  away  with  the  vessel.  She  was  recaptured  by  a  British 
vessel,  and  the  prisoners  brought  to  this  country  to  take  their  trial  for 
murder.  The  Jury  found  them  guilty." — A  case  was  reserved  for  the 
opinion  of  the  Judges  as  to  the  legality  of  the  conviction. 

The  majority  of  the  Judges  who  were  present  at  the  argument^) 
were  of  opinion  that  the  conviction  was  wrong,  on  the  ground  of  want  of 
jurisdiction  in  an  English  Court  to  try  an  offence  committed  on  board 
the  Felicidade,  and  that  if  the  lawful  possession  of  that  vessel  by  the 
British  Crown,  through  its  officers,  would  be  sufficient  to  give  jurisdic- 
tion, there  was  no  evidence  brought  before  the  Court  at  the  trial  to  show 
that  the  possession  was  lawful. 

This  decision  must  have  been  founded  on  the  two  propositions  that, 
r-xnoc-i  jure  gentium,  the  Slave  Trade  was  not  Piracy,  and  *that  unless 
J  it  were  so,  the  British  Courts  had,  under  the  circumstances,  no 
jurisdiction  over  an  offence  committed  on  board  the  Felicidade.  It  is 
impossible,  however,  to  be  much  surprised  after  this  trial,  and  the  facts 
revealed  during  its  pendency,  at  the  statute  of  the  British  Parliament  in 
August,  1845.(/-) 

CCCIX.  The  illegality  of  Slavery,  however,  according  to  the  Munici- 
pal Law,  has  a  very  important  effect  upon  the  international  relations  of  the 
State  in  which  such  law  prevails.  If  the  moveable  property  of  the  sub- 
jects of  a  State  finds  its  way  within  the  limits  and  jurisdiction  of  a 
Foreign  State,  it  may  be  claimed  by  and  must  be  restored  to  the  lawful 
owners.  In  parts  of  the  American  Continent,  slaves  are  unhappily  by 
Municipal  Law  considered  as  chattels  or  moveable  property  ;  a  slave 
escapes  or  arrives  in  this  country  where  slavery  is  illegal;  he  is  claimed 
by  his  master ;  must  he  be  restored  ?  Unquestionably  not ;  upon  what 
ground  ?  Upon  the  ground  that  the  status  of  Slavery  is  contrary  both 
to  good  morals  and  to  the  fundamental  policy.  This  has  been  the  doc- 
trine of  English  Law  from  the  date  of  the  famous  case  of  Somersett 
the  negro,  in  1771 ;  and  such  it  was  declared  to  be  in  the  recent  case  of 
the  Creole.  The  doctrine  is  not  affected  by  the  judgment  of  Lord 
Stowell,  whether  right  or  wrong,  in  the  case  of  the  Slave  Grace;  for 
that  was  founded  on  the  alleged  principle  that  the  freedom  incident  to 
all  who  touch  British  soil  might  be  obliterated  in  the  case  of  a  slave, 
although  a  British  subject  or  chattel,  who  returned  to  the  place  in  which 
Slavery  was  legal;  his  or  her  liberty  had  been  (said  that  great  judge) 
placed  "  into  a  sort  of  parenthesis. "(s) 

CCCX.  The  English  cases  on  this  subject(<)  are  few,  but  clear  and 
quite  decisive  on  the  point. 

(<?)  Denison's  Crown  Cases  Reserved,  vol.  i.  p.  154. 

(r)  Vide  ante,  p.  329.  (s)  Haggard's  Admir.  Rep.  ii.  p.  131, 

(t)  See  the  argument  of  Mr.  Hargrave,  before  Lord  Mansfield,  Howell's  State 


SLAVES  AND  THE  SLAVE  TRADE.         255 

*The  earliest  case  in  which  the  doctrine  appears  to  have  been  r#Q9«-i 
judicially  laid  down  was  that  of  Shanley  v.  Harvey,  before  Lord  "- 
Chancellor  Northington,  in  1762.  In  that  case  a  bill  was  filed  against 
Harvey,  a  negro,  and  others  for  an  account  of  the  personal  estate  of  a 
deceased  person;  and  the  question  turned  upon  whether  Harvey  to 
whom  had  been  given  a  sum  of  money  by  the  deceased  on  her  death- 
bed, was  a  free  man  :  he  had  been  brought  to  England  before  this  event 
happened.  Lord  Northington  dismissed  the  bill  with  costs,  observing, 
"as  soon  as  a  man  sets  foot  on  English  ground  he  is  free."(«)  The 
case(v)  next  in  date  was  that  of  Knight  the  negro,  in  1770,  tried  before 
the  Scotch  Court,  in  which  the  same  principle  of  law  was  acted  upon. 
But  the  leading  case  is  that  of  Somersett  the  negro,  1771.  In  this  case 
a  habeas  corpus  was  graated  against  Captain  Knowles  to  bring  up  the 
body  of  Somersett,  who  was  in  his  possession  in  irons,  and  the  causS  of 
his  detention.  It  appeared  that  Somersett  had  been  bought  in  Virginia, 
brought  to  England  by  his  master,  and  on  refusing  to  return,  was  sent 
by  his  master  on  board  Captain  Knowles's  ship  to  be  carried  to  Jamaica 
and  sold  as  a  slave. 

"  The  only  question  (Lord  Mansfield  said)  before  us,  is  whether  the 
cause  on  the  return  (to  the  writ  of  habeas  corpus)  is  sufficient  ?  If  it 
is,  the  negro  must  be  remanded ;  if  it  is  not  he  must  be  discharged. 
Accordingly  the  return  states  that  the  slaves  departed  and  refused  to 
serve  whereupon  he  was  kept  to  be  sold  abroad — so  high  an  act  of  domi- 
nion must  be  recognized  by  the  law  of  the  country  where  it  is  used.  The 
power  of  a  master  over  his  slave  has  been  extremely  different  in  different 
countries.  The  state  of  slavery  is  of  such  a  nature  that  it  is  incapable 
of  being  introduced  on  any  reasons,  moral  or  political,  but  only  by  posi- 
tive laio,  which  preserves  its  force  long  after  the  reasons,  occasion,  and 
time  itself  from  whence  *it  was  ever  created  is  erased  from  [-#007-1 
memory.  It  is  so  odious  that  nothing  can  support  it  but  positive  L 
law.  Whatever  inconveniences  therefore  may  follow  from  the  decision, 
I  cannot  say  this  case  is  allowed  or  approved  by  the  law  of  England,  and 
therefore  the  black  must  be  discharged. "(x) 

In  1824,(#)  this  doctrine  was  upheld  to  its  fullest  extent  by  the  Court 
of  Queen's  Bench.  A  British  merchant,  of  the  name  of  Forbes,  was  pro- 
prietor of  a  cotton  plantation  near  the  river  St.  John,  in  the  Spanish 
province  of  East  Florida,  on  which  he  employed  one  hundred  Slaves, 
whom  he  had  legally  purchased.  In  1815,  thirty-eight  of  these  Slaves 
escaped  from  their  master,  and  took  refuge  on  board  a  British  man-of- 
war,  commanded  by  Sir  George  Cockburn,  who,  with  Sir  Alexander 
Cochrane,  was  at  that  time  in  command  of  a  squadron  on  the  North 
American  station.  Spain  was  in  amity  with  G-reat  Britain,  and  Mr. 

Trials,  vol.  xx.  p.  1. ;  and  the  judgment  in  the  case  of  the  Slave  Grace.  A  pamph- 
let by  the  author  on  the  Case  of  the  Creole,  which  is  mentioned  below,  contains  a 
summary  of  these  cases. 

J«)  Eden's  Chancery  Reports,  p.  126. 
v)  Fergusson  on  Divorce,  App.  396. 
x)  The  Negro  case,  Howell's  State  Trials,  vol.  xx.  p.  82. 

(y]  Tha  following  remarks  on  the  English  and  French  Law  on  this  subject  are 
taken  from  the  pamphlet  on  the  Creole  already  referred  to. 


256  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Forbes  prayed  Sir  G.  Cockburu  "to  order  the  said  thirty-eight  slaves  to 
be  forthwith  delivered  to  him,  their  lawful  proprietor."  The  Spanish 
Governor  of  East  Florida  made  also  an  application  to  the  same  effect. 
But  the  Admiral  replied,  that  the  Slaves  having  reached  the  deck  of  a 
King's  ship,  were  become  free  agents,  and  that  he  had  no  power  or  right 
to  exercise  any  control  over  them.  The  proprietor,  Mr.  Forbes,  after- 
wards brought  an  action  against  Sir  Alexander  Cochrane  and  Sir  George 
Cockbunij  in  the  Court  of  Queen's  Bench  at  Westminster.  The  action 
altogether  failed.  Upon  the  trial,  Mr.  Justice  Holroyd  said:  "Now,  it 
appears,  from  the  facts  of  the  case,  that  the  plaintiff  had  no  right  in  these 
persons,  except  in  their  character  of  Slaves,  for  they  were  not  serving 
him  under  any  contract;  and,  according  to  the  principles  of  the  English 
law,  such  a  right  cannot  be  considered  as  warranted  by  the  general  law 
°f  na^ure-  I  do  no*  iHean  to  say  *that  particular  circumstances 
may  not  introduce  a  legal  relation  to  that  extent;  but  assum- 
ing that  there  may  be  such  a  relation,  it  can  only  have  a  local  existence, 
where  it  is  tolerated  by  the  particular  law  of  the  place,  to  which  law  all 
persons  there  resident  are  bound  to  submit.  Now,  if  the  plaintiff  cannot 
maintain  this  action  under  the  general  Law  of  Nature,  independently  of 
any  positive  institution,  then  his  right  of  action  can  be  founded  only 
upon  some  right  which  he  has  acquired  by  the  law  of  the  country  where 
he  is  domiciled  .....  Here  the  plaintiff,  a  British  subject  was 
resident  in  a  Spanish  colony,  and  perhaps  it  may  be  inferred,  from  what 
is  stated  in  the  special  case,  that  by  the  law  of  that  colony  Slavery  was 
tolerated.  I  am  of  opinion  that,  according  to  the  principles  of  the  En- 
glish law,  the  right  of  Slaves,  even  in  a  country  where  such  rights  are 
recognised  by  law,  must  be  considered  and  founded  not  upon  the  Law  of 
Nature,  but  upon  the  particular  law  of  that  country.  And,  supposing 
that  the  law  of  England  would  give  a  remedy  for  the  violation  of  such  a 
right  by  one  British  subject  to  another  (both  being  resident  in,  and  bound 
to  obey  the  laws  of  that  country),  still  the  right  of  these  Slaves,  being 
founded  upon  the  law  of  Spain  as  applicable  to  the  Floridas,  must  be  co- 
extensive with  the  territories  of  that  State.  I  do  not  mean  to  say,  that 
if  the  plaintiff,  having  the  right  to  possess  these  persons  as  his  Slaves 
there,  had  taken  them  into  another  place,  where,  by  law,  Slavery  also 
prevailed,  his  right  would  not  have  continued  in  such  a  place,  the  laws 
of  both  countries  allowing  a  property  in  slaves.  The  law  of  Slavery  is, 
however,  a  law  in  invitum;  and  when  a  party  gets  out  of  the  territory 
where  it  prevails,  and  out  of  the  power  of  his  master,  and  gets  under  the 
protection  of  another  power,  without  any  wrongful  act  done  by  the  party 
giving  that  protection,  the  right  of  the  master,  which  is  founded  on  the 
Municipal  Law  of  the  particular  place  only,  does  not  continue,  and  there 
is  no  right  of  action  against  a  party  who  merely  receives  the  Slave  in 
that  country,  without  doing  any  wrongful  act/' 

r*Q3cn       *And  the  same  learned  judge  further  observed: — "In  this 

-I  case  the  Slaves  belonged  to  the  subject  of  a  foreign  State.     The 

plaintiff,  therefore,  must  recover  here  upon  what  is  called  the  comitas 

inter  comtmmitates ;  but  it  is  a  maxim  that  cannot  prevail  in  any  case 


SLAVES  AND  THE  SLAVE  TEADE.         257 

where  it  violates  the  law  of  our  own  country,  the  Law  of  Nature,  or  the 
Law  of  God." 

Chief  Justice  Best  expressed  himself,  during  the  trial  of  the  same 
cause,  in  the  following  emphatic  language : — 

"Slavery  is  a  local  law,  and  therefore,  if  a  man  wishes  to  preserve 
his  Slaves,  let  him  attach  them  to  him  by  affection,  or  make  fast  the 
bars  of  their  prison,  or  rivet  well  their  chains,  for  the  instant  they  get 
beyond  the  limits  where  Slavery  is  recognised  by  the  local  law,  they 
have  broken  their  chains,  they  have  escaped  from  their  prison,  and  are 
free.  These  men,  when  on  board  an  English  ship,  had  all  the  rights 
belonging  to  Englishmen,  and  were  subject  to  all  their  liabilities.  If 
they  had  committed  any  offence,  they  must  have  been  tried  according  to 
English  laws.  If  any  injury  had  been  done  to  them  they  would  have 
had  a  remedy  by  applying  to  the  laws  of  this  country  for  redress.  I 
think  that  Sir  Gr.  Cockburn  did  all  that  he  lawfully  could  do  to  assist 
the  plaintiff;  he  permitted  him  to  endeavour  to  persuade  the  Slaves  to 
return,  but  he  refused  to  apply  force.  I  think  that  he  might  have  gone 
further,  and  have  said  that  force  should  not  be  used  by  others;  for  if  any 
force  had  been  used  by  the  master  or  any  person  in  his  assistance,  can  it 
be  doubted  that  the  Slaves  might  have  brought  an  action  of  trespass 
against  the  persons  using  that  force  ?  Nay,  if  the  Slave,  acting  upon  his 
newly-recovered  right  of  freedom,  had  determined  to  vindicate  that  right, 
originally  the  gift  of  nature,  and  had  resisted  the  force,  and  his  death 
had  ensued  in  the  course  of  such  resistance,  can  there  be  any  doubt  that 
every  one  who  had  contributed  to  that  death  would,  according  to  our 
laws,  be  guilty  of  murder?  That  is  substantially  decided  by  Somersett's 
case,  from  which  it  is  clear,  that  such  would  have  been  the  consequence 
had  these  Slaves  been  in  England ;  and  so  far  as  this  question  is  con- 
cerned, there  is  no  difference  *between  an  English  ship  and  the 
soil  of  England;  for  are  not  those  on  board  an  English  ship  as 
much  protected  and  governed  by  the  English  laws  as  if  they  stood  upon 
English  land?  If  there  be  no  difference  in  this  respect,  Somersett's  case 
has  decided  the  present :  he  was  held  to  be  entitled  to  his  discharge,  and, 
consequently,  all  persons  attempting  to  force  him  back  into  Slavery 
would  have  been  trespassers,  and  if  death  had  ensued  in  using  that  force, 
would  have  been  guilty  of  murder.  It  has  been  said  that  Sir.  Gf.  Cock- 
burn  might  have  sent  them  back.  He  certainly  was  not  bound  to  receive 
them  into  his  own  ship  in  the  jirst  instance;  but  having  done  so,  he  could 
no  more  have  forced  them  back  into  Slavery  than  he  could  have  com- 
mitted them  to  the  deep.  There  may  possibly  be  a  distinction  between 
the  situation  of  these  persons  and  that  of  Slaves  coming  from  our  own 
islands,  for  we  have  unfortunately  recognised  the  existence  of  Slavery 
there,  although  we  have  never  recognised  it  in  our  own  country.  The 
plaintiff  does  not  found  his  action  upon  any  violation  of  the  English  laws, 
but  he  relies  upon  the  comity  of  nations.  I  am  of  opinion,  however, 
that  he  cannot  maintain  any  action  in  this  country  by  the  comity  of 
nations.  Although  the  English  law  has  recognised  Slavery,  it  has  done 
so  within  certain  limits  only;  and  I  deny  that  in  any  case  an  action  has 


258  PHILLIMORE    ON    INTERNATIONAL    LAW. 

been  held  to  be  maintainable  in  the  municipal  courts  of  this  country, 
founded  upon  a  right  arising  out  of  Slavery. 

"When  they  got  out  of  the  territory  where  they  became  Slaves  to  the 
plaintiff,  and  out  of  his  power  and  control,  they  were,  by  the  general 
Law  of  Nature,  made  free,  unless  they  were  Slaves  by  the  particular 
law  of  the  place  where  the  defendant  received  them.  They  were  not 
Slaves  by  the  law  which  prevailed  on  board  the  British  ship  of  war.  I 
am  therefore  of  opinion,  that  the  defendants  are  entitled  to  the  judgment 
of  the  Court." 

CCCXI.  This  doctrine,  it  is  right  to  say,  however  agreeable  to  the 
genius,  is  not  peculiar  to  the  free  constitution  of  Great  Britain. 

*^n  *^e  vear  1^38,  this  generous  maxim  of  French  jurispru- 
dence  was  put  to  its  severest  test  in  the  case  of  "Jean  Borcaut," 
a  "Negre  Creole,"  which  will  be  found  reported  in  the  thirteenth  volume 
of  the  "  Causes  Celebres,"  the  substance  of  which  was  as  follows : — When 
France  became  possessed  of  colonies  in  the  West  Indies,  she  shared  the 
guilt  of  Christian  Europe  in  permitting  Slavery  in  her  colonies.  The 
first  edict  by  which  it  was  authorised  was  issued  in  1615,  but,  never- 
theless, till  1716  the  slaves  of  French  colonists  became  free  when  they 
touched  the  soil  of  France.  A  royal  ordonnance  of  that  date,  the  pro- 
visions of  which  were  explained  and  confirmed  by  one  issued  in  1738, 
permitted,  under  certain  provisions  ensuring  their  good  treatment  arid 
restricting  the  time  of  their  Slavery,  Slaves  from  the  French  colonies  to 
be  brought  by  their  masters  into  France  without  acquiring  their  freedom. 
One  of  the  conditions,  however,  was,  that  the  master  should  duly  register 
at  the  first  port  the  arrival  of  the  Slave,  the  probable  time  of  his  stay, 
&c.,  &c.,  according  to  certain  prescribed  formalities;  in  any  case  where 
these  conditions  had  not  been  literally  and  strictly  fulfilled,  the  ancient 
law  of  France  resumed  its  operation.  There  had  been  some  omission  of 
these  prescribed  formalities  of  registry  in  the  case  of  the  slave  Jean  Bor- 
caut, who  accordingly  claimed,  and  after  a  trial  before  "P  Audience 
d'Amiraute"  obtained  his  liberty.  In  the  report  of  the  trial  will  be 
found  the  plaidoyers  for  the  negro,  for  the  crown,  and  for  the  master : 
and  in  the  speech  of  the  advocate  for  the  master  there  is  this  remarkable 


"  On  ne  connoit  point,  il  est  vrai,  d"  esclave  en  France,  et  quiconque  a 
mis  le  pied  dans  ce  Royaume,  est  gratifid  de  la  liberte. 

"Mais  quelleest  1'application,  et  quelle  est  la  distinction  du  principe? 

tl  Le  principe  est  vrai  dans  le  cas  ou  tout  autre  esclave  qu'un  esclave 
neare  arrivera  dans  ce  Royaume. 

"  Par  exemple  qu'un  Stranger,  qu'un  negociant  frangois  arrive  dans 
r#319T  ce  R°yaume  avec  des  sauvages  qu'il  prdlendra  etre  *ses  esdaves; 
-I  qu'un  Espagnol,  qu'un  Anglois  vienne  en  ce  Royaume  avec  des 
esdaves  negres  dependans  des  colonies  de  sa  nation;  voila  le  cas  dans 
lequel  par  la  loi,  par  le  priviUge  de  la  franchise  de  ce  Royaume,  la 
chaine  de  I'esclavage  se  brisera,  et  la  liberte  sera  acquise  a  de  pareils 
esdaves. 

"Voila  le  cas  dans  lequel  il  faut  appliquer  1'art  6.  du  Tit.  1.  liv.  1. 
des  Instituts  de  Loysel.  Voila  le  cas  ou  il  faut  dire  avec  M.  de  Rene 


SLAVES    AND    THE    SLAVE    TRADE.  259 

Chopin,  que  1' entree  dans  la  ville  de  Paris  assure  le  maintien,  efc  devient 
1'asile  de  la  liberte. 

"  Lutetiam  velut  sacro-sanctam  civitatem  omnibus  prcebere  libertatis 
atrium  quoddam  asiliumque  immunitatis."(z) 

Another  instance  may  be  added  of  the  jealousy  with  which  France 
regarded  this  partial  abrogation  of  her  general  law  in  favour  of  liberty. 

In  1758,  "Francisque,"  a  negro-slave  bought  by  his  master  in  Hin- 
dostan,  Was  brought  by  him  to  France.  Francisque  claimed  his  liberty : 
his  master  contended  that  he  had  carefully  fulfilled  the  formalities  pre- 
scribed by  the  "  Code  Noir  j"  it  was  answered  that  this  law  only  affected 
African  and  American  Slaves,  and  could  not  be  extended  to  the  East 
Indies.  The  Slave  obtained  his  liberty. (a)  The  force  of  these  examples 
is  not  weakened  by  the  reflection  that  they  are  furnished  by  what  was  at 
the  time  an  undeniably  despotic  State.  Such  was  the  law  in  favour  of 
liberty,  passed  even  by  an  absolute  monarchy  during  what'  would  now 
be  designated  the  comparatively  dark  ages. 

CCCXIL  The  same  doctrine  was  maintained  by  Poland  during  the 
period  of  her  existence  as  an  independent  kingdom. 

Wicquefort,(&)  in  that  part  of  his  treatise  on  the  functions  of  ambas- 
sadors, in  which  he  discusses  the  privileges  of  their  residence,  tells  the 
story  of  a  certain  Pole  who,  having  left  his  country  and  gone  into  Mus- 
covy, had  there  sold  *himself  into  Slavery,  but  afterwards,  being 
in  Holland,  he  fled  to  the  house  of  the  Polish  Ambassador:  "Les 
Moscovites  en  firent  tant  de  bruit,  que  les  estats  de  Hollande,  apres  avoir 
fait  occuper  toutes  les  avenues  de  la  maison,  y  firent  entrer  quelques  offi- 
ciers  et  soldats  pour  faire  la  recherche  du  fugitif.  Us  n'y  trouverent 
personne,  et  cependant  ils  firent  cet  affront  au  ministre  public  du  roy  de 
Pologne.  Le  Polonois  n'estoit  point  esclave  ne  du  Czaar;  et  s'il  1'estoit 
devenu  en  allant  demeurer  en  Moscovie,  il  recouvra  sa  liberte  naturelle 
en  mettant  le  pie  dans  un  pa'is}  qui  ne  nourrit  point  d'esclaves,  et  ou  on 
ne  devroit point  sgavoir  ce  que  c'est  que  de  servitude  ou  d'esclavage.  Les 
Jurisconsultes  Francois  disent,  que  I' air  de  France  est  si  bon  et  si  benin 
que  des  qu'un  esclave  entre  dans  le  Roiaume}  mesme  a  la  suite  d'un  am- 
bassadeur,  il  ne  respire  que  liberte,  et  la  recouvre  aussi-tost" 

CCCXIIL  The  last  occasion  upon  which  an  international  question  of 
this  kind  was  raised,  happened  in  1841. 

A  brig  belonging  to  a  subject  of  the  United  States,  called  the  Creole, 
of  Richmond,  in  Virginia,  sailed  on  the  27th  of  October,  1841,  with  a 
cargo  of  merchandise,  and  one  hundred  and  thirty-five  slaves,  from  the 
Hampton  Roads,  for  New  Orleans.  During  the  passage,  the  Slaves  men- 
tioned killed  a  slave-owner,  who  resisted  their  attempt  to  free  themselves, 
wounded  the  captain,  and  compelled  the  rest  of  the  crew  to  take  the  ves- 
sel into  the  port  of  Nassau,  in  New  Providence  Island,  in  possession  of 
the  British  Crown.  On  their  arrival,  the  American  Consul  requested 
that  a  guard  might  be  placed  to  prevent  the  escape  of  persons  charged 
with  a  piratical  act :  the  request  was  acceded  to.  An  investigation  was 

(z)  Causes  Cel6bres,  torn.  xiii.  p.  562. 

(a)  Denisart,  D6«.isions  Nouvelles,  torn.  iii.  p.  406,  tit.  Negre,  n.  45. 

(6)  Ambassadeur  et  ses  Fonctions,  par  M.  de  Wicquefort,  1.  i.  p.  418. 


260  PHILLIMORE    ON    INTERNATIONAL    LAW. 

made  into  the  circumstances  by  two  British  magistrates,  the  result  of 
which  was,  that  nineteen  persons  were  imprisoned  as  being  connected 
with  the  murder,  the  remainder  being  allowed  to  stay  or  depart  as  they 
pleased.  The  British  authorities  further  refused  to  deliver  up  the  nine- 
teen until  they  should  have  received  instructions  to  that  effect  from 
England. 

The  claim  of  the  G-overnment  of  the  N.  A.  United  States,  that  the 
r*q44~|  coloured  persons,  as  the  slaves  were  called,  *should  be  restored 
J  to  their  master,  was  not  acceded  to  on  the  part  of  the  British 
Government,  (c)  It  would  only  have  been  necessary  to  cite,  in  answer 
to  such  demands,  the  language  of  Mr.  Justice  Story  :  "  So  the  state  of 
Slavery  will  not  be  recognised  in  any  country  whose  institutions  and 
policy  prohibit  Slavery. "(d) 

Bodinus,  m  his  first  book,  "De  Republica,"(e)  testifies  that  such  had 
been  from  early  times  the  law  and  custom  of  France.  He  illustrates  it 
by  two  examples.  The  first  was  the  case  of  a  Spanish  Ambassador  who 
brought  with  him  a  Slave  in  his  retinue.  The  Slave,  in  spite  of  all  re- 
monstrance, claimed  and"  obtained  his  freedom  on  entering  the  French 
dominions.  In  the  second  instance,  a  Spanish  merchant,  happening  to 
touch  at  Toulon  on  his  way  to  Genoa,  with  a  domestic  Slave  among  his 
servants,  when  "  hospes,  re  intellects,,  servo  persuasit  ut  ad  libertatum 
provocaret ;"  the  merchant  complained  that  he  had  bona  fide  purchased 
the  slave,  that  he  was  not  bound  by  the  law  of  France,  that  he  was  not 
resident  there,  but  happened  only  to  touch  at  a  French  port  on  his  pas- 
sage to  Genoa,  and  that  at  least  he  ought  to  be  remunerated  for  the  pur- 
chase-money of  the  slave  ;  but  he  found  that  his  remonstrance  was  fruit- 
less, and  made  a  private  bargain  with  his  slave  for  the  continuance  of 
his  services. 

CCCXIV.  On  the  whole,  it  seems  not  unreasonable  to  hope,  that  be- 
fore many  more  years  have  elapsed,  both  Municipal  and  International 
Law  will  be  brought  into  harmony  with  the  Law  of  Nature ;  and  that,  to 
the  question  of  the  abolition  both  of  Slavery  and  the  Slave  Trade,  the 
emphatic  language  of  Grotius  may  be  applicable — "  humano  generi 


[*345]  *CHAPTER    XVIII. 

RIGHT   OE  JURISDICTION   OVER  PERSONS. 

CCCXV.  We  have  now  to  consider  the  right  incident  to  a  State  of 
absolute  and  uncontrolled  power  of  jurisdiction  over  all  Persons,  and 

(c)  See  pamphlet  on  the  case  of  The  Creole,  already  referred  to,  and  opinion  of 
the  Law  Lords  in  the  House  of  Lords,  February,  1842. 

(d)  Story's  Conflict  of  Laws,  p.  97.     See  also  Mr.  Wheaton's  Treatise  on  Inter- 
national Law,  vol.  i.  p.  146,  exception  2. 

(e)  L.  i.  de  Rep.  p.  41.    Bod.  de  Rep.  liberi  sex:  Paris,  1586. 
(/)  L.  ii.  c.  x,  2,  1. 


RIGHT    OF    JURISDICTION    OVER    PERSONS.        261 

over  all  Things,  within  her  territorial  limits,  and,  as  will  be  seen  in  cer- 
tain specific  cases,  without  them. 

CCCXVI.  First,  as  to  the  Eight  of  Territorial  Jurisdiction  over  Per- 
sons :  they  are  either 

1.  Subjects,  or 

2.  Foreigners  commorant  in  the  land. 

CCCXVII.  1.  With  regard  to  the  jurisdiction  and  authority  of  States 
over  their  own  proper  subjects,  no  doubt  can  be  raised ;  under  the  term 
subject  may  be  included  both  native  and  naturalized  citizens.  With  re- 
spect to  native  citizens,  the  right  of  which  we  are  speaking  is  manifestly 
essential  to  the  independence  of  the  State.  "Sand  (Grotius  observes) 
ex  quo  civiles  societates  institutae  sunt,  certum  est  rectoribus  cuj usque 
speciale  quoddam  in  sous  jus  quaesitum."(a) 

The  native  citizens  of  "a  State  are  those  born  within  its  dominions,(6) 
even  including,  according  to  the  law  of  England,  (c)  the  children  of  alien 
friends.  So  are  all  those  born  on  board  the  ships  of  the  navy,  or  within 
the  lines  of  the  *armi/}  or  in  the  house  of  the  Ambassador,  or 
of  the  Sovereign,(d)  if  he  should  happen  to  be  sojourning  in  a 
foreign  country. 

Every  State  has  an  undoubted  claim  upon  the  services  of  all  its  citi- 
zens. Every  State  has,  strictly  speaking,  a  right  of  prohibiting  their 
egress  from  their  own  country, (e)  a  right  still  exercised  by  some  of  the 
continental  powers  of  Europe.  These  rights  are  subject  to  no  control  or 
directions  as  to  their  exercise  from  any  foreign  State. 

C  OCX  VIII.  Every  State  has  a  right  of  recalling  (jus  avocandi)  its 
citizens  from  foreign  countries,(/)  especially  for  the  purpose  of  perform- 
ing military  services  to  their  own  country.  Great  difficulty,  however, 
necessarily  arises  in  the  enforcement  of  this  right.  No  foreign  nation  is 
bound  to  publish,  much  less  enforce,  such  a  decree  of  revocation.  No 
foreign  State  can  legally  be  invaded  for  the  purpose  of  forcibly  taking 
away  subjects  commorant  there.  The  high  seas,  however,  are  not  sub- 
ject to  the  jurisdiction  of  any  State;  and  a  question  therefore  arises 
whether  the  State,  seeking  its  recalled  subjects,  can  search  for  them  in 
the  vessels  of  other  nations  met  with  on  the  high  seas  ?  This  question, 
answered  in  the  affirmative  by  Great  Britain,  and  in  the  negative  by  the 
United  States  of  North  America,  has  led  to  very  serious  and  much  to 
be  lamented  quarrels  between  the  two  nations.  (#) 

(a)  L.  ii.  c.  xxv.  8.  (6)  Giinther,  vol.  ii.  p.  261. 

(c)  Stephen's  (Blackstone's)  Commentaries,  vol.  ii.  p.  4. 
Calvin's  case,  7  Coke's  Reports,  18  a. 

(d)  Vide  post. 

(e)  "  Solet  hie  illud  quaeri,  an  civibus  de  civitate  abscedere  liceat,  venia  non  im- 
petrata.     Scimus  populos  esse  ubi  id  non  liceat,  ut  apud  Moschos  :  nee  negamus 
talibus  pactis  iniri  posse  societatem  civilem,  et  mores  vim  pacti  accipere." — Grot. 
1.  ii.  c.  v.  24. 

Wheaton,  Ele"m.  torn.  i.  p.  135. 

(/)  Giinther,  vol.  ii.  p.  309. 

Heffters,  s.  59.     • 

(g)  See  correspondence  between  Mr.  Webster  and  Lord  Ashburton.  "Wheaton's 
Hist.  p.  737,  &c. 

Vide  post  as  to  jurisdiction  over  ships  of  war,  and  merchant  vessels  in  foreign 
harbours. 


262  PHILLIMORE    ON    INTERNATIONAL    LAW. 

CCCXIX.  2.  It  has  been  said  that  these  rules  of  law(7t)  *are 
applicable  to  naturalized  as  well  as  native  citizens.  But  there 
is  a  class  which  cannot  be,  strictly  speaking,  included  under  either  of 
these  denominations,  namely,  the  class  of  those  who  have  ceased  to  reside 
in  their  native  country,  and  have  taken  up  a  permanent  abode  (domici- 
lium  sine  animo  revertendi}  in  another.(i)  These  are  domiciled  inhabi- 
tants ;  they  have  not  put  on  a  new  citizenship  through  some  formal  mode 
enjoined  by  the  law  of  the  new  country.  They  are  de  facto  though  not 
de  jure  citizens  of  the  country  of  their  domicil.(7c) 

CCCXX.  It  was  a  great  maxim  of  the  constitutional  policy  of  ancient 
Home  not  to  allow  her  citizenship  to  be  shared  with  that  of  any  other 
State. (7)  A  different  custom  prevailed  in  Greece  and  in  other  States; 
but  the  Roman  citizen  who  accepted  another  citizenship  became  ipso 
facto  disfranchised  of  his  former  rights. 

CCCXXI.  It  is  sometimes  said  that  a  different  rule  prevails  in  modern 
times,  and  that  a  man  can  be  at  one  and  the  same  time  the  citizen  of  two 
States. (m)  In  truth,  however,  this  must  depend  upon  the  civil  policy 
and  domestic  regulations  of  each  State.  But  it  is  true,  as  a  general  pro- 
position, that  a  man  can  have  only  one  allegiance. (ri)  The  State  may, 
r*3J.8n  as  *-^uss^a  nas  done,  forbid  her  subjects  to  be  domiciled  else- 
J  where,  or  may  permit  it  as  England  has  done;  but  in  either 
case,  if  a  collision  between  the  two  allegiances,  so  to  speak,  should  arise, 
the  latter  would  be  obliged  to  yield  to  the  former.  For  instance,  if  the 
two  countries  were  at  war,  the  citizen  who  was  taken  in  arms  on  behalf 
of  the  country  of  his  naturalization  against  the  country  of  his  birth 
would,  strictly  speaking,  be  guilty  of  treason.  In  these  times,  probably, 
most  States  would  take  into  consideration  the  length  of  time  during 
which  the  new  domicil  had  been  acquired,  whether  offences  against  the 
original  State  were  to  be  punished,  or  her  protection  invoked  by  her 
long  absent  citizen. 

CCCXXII.  All  strangers  commorant  in  a  land,  owe  obedience,   as 

(k)  Story,  Conflict  of  Laws,  s.  48.  c.  iii.,  ib.  s.  540.  c.  xiv. 

Faelix,  1.  i.  t.  i.  s.  2.  Du  Changement  de  Nationalite. 

Heffters,  s.  58. 

Colquhoun's  Civil  Law,  s.  393.  vol.  i.  p.  377.,  ib.  s.  389.  p.  373. 

Giinther,  vol.  ii.  p.  267. 

(t)  Vide  post,  chapters  on  DOMICIL,  under  COMITY. 

Vattel,  1.  i.  c.  xix.  s.  211,  &c. 

(k)  See  a  later  part  of  this  work  on  COMITY,  for  further  remarks  on  Domicil. 

(I)  Vide  Cicer.  Orat.  pro  Balbo,  passim,  especially  s.  12.  See  Zouche's  remarks 
thereupon,  p.  2.  s.  ii.  xiii.  De  Jure  Feciali. 

(m)  Heffters  (s.  59.)  maintains  this  ground  in  opposition  to  Zouche,  cited 
above. 

Giinther,  vol.  ii.  p.  325.  Einheimischen. 

(n)  The  law  is  laid  down  with  great  perspicuity  by  Zouche.  Speaking  of  a  de- 
cision of  the  French  tribunals  on  a  question  of  Domicil,  and  vindicating  it  from 
the  charge  of  private  partiality,  he  says  :  "  Fortassis  vero  id  respexerunt,  quod 
quamvis  incolatus  et  Domicilium  in  externo  regno  sufficiunt  ad  constituendum  ali- 
quem  subditum  jurisdictioni  et  prcestandis  muneribus  obnoxium  non-tamen  sit  satis  ad 
constituendum  Civem,  nteorumprivilegiorum  civilium  sit  particeps  quae  in  regno  natis 
competunt  nisi  specialis  allectio  supervenerit." — De  Judicio  inter  Gentes,  pars.  n. 
s.  ii.  14. 


EIGHT    OP    JURISDICTION    OVER    PERSONS.  263 

subjects  for  the  time  being  (subditi  temporanei),  to  the  laws  of  it.(o) 
The  limitation  sometimes  incident  to  this  proposition  will  be  stated  in  a 
subsequent  section,  in  which  the  right  of  protecting  subjects  in  a  foreign 
land  is  discussed. 

CCCXXIII.  Naturalised  foreigners  are  in  a  very  different  position 
from  merely  commorant  strangers. (p)  It  has  been  the  policy  of  wise 
States,  it  was  especially  the  policy  of  Rome,  to  open  wide  the  door  for 
the  reception  and  naturalisation  of  foreigners.  (<?) 

* Naturalisation  is  usually  called  a  change   of  nationality, 
The  naturalised  person  is  supposed,  for  the  purposes  of  pro- 
tection  and  allegiance  at  least,  to  be  incorporated  with  the  naturalising 
country. 

This  proposition  is,  generally  speaking,  sound ;  but  it  must  admit  of 
one  qualification  similar  to  that  already  mentioned  with  respect  to  the 
domiciled  subject,  if  the  naturalised  person  should  have  been  the  original 
subject  of  a  country  which  did  not  allow  him  to  shake  off  his  allegiance 
(exuere  patriam}.  In  this  event,  if  he  should  find  himself  placed  in  a 
situation — the  breaking  out  of  war,  for  instance — in  which  his  duties  to 
the  country  of  his  birth  and  of  his  adoption  are  at  variance,  the  former 
country  would  not  regard  him  as  a  lawful  enemy,  but  as  a  rebel ;  nor 
could  the  jus  avocandi  already  spoken  of  be  legally  denied  to  her  by  the 
adopting  or  naturalising  country,  though  the  enforcement  of  the  right 
could  not  be  claimed.  Banishment  itself  does  not  destroy  the  original 
tie  of  allegiance. 

The  Letter  of  Sir  L.  Jenkins,  from  Nimeguen,  to  Sir  William  Tem- 
ple, at  the  Hague,  contains  the  opinion  of  a  most  careful,  learned,  and 
practical  jurist  upon  this  question. 

"  My  Lord, 

"  To  the  question  you  were  pleased  to  send  me,  about  the  three 
Scotchmen,  and  the  objection  of  the  States  to  your  memorial,  that  after 
a  sentence  of  banishment,  the  allegiance  of  a  subject  is  extinguished;  I 
have  this  with  submission  to  offer,  that  there  are  several  things  in  the 
Practice  of  Nations  (which  is  the  law  in  the  question)  that  make  it  im- 
possible for  subjects,  in  my  poor  opinion,  to  renounce  or  divest  themselves 
of  the  allegiance  they  were  born  under. 

"  For  instance,  no  subject  of  our  master's  (we'll  put  the  case  at  home) 
can  by  the  Law  go  out  of  his  dominions  without  his  leave  j  nor  is  this 

(o)  The  Law  is  again  very  clearly  and  correctly  stated  by  Zouche.  "  Quod 
quanwis  Incolatus  et  Domicilium  in  externo  regno  sufficiunt  ad  constituendum 
aliqnem  subditum  Jurisdiction!  et  praestandis  muneribus  obnoxium,  non  tamen  sit 
satis  ad  constituendum  civem,  ut  eorum  privilegiorum  civilium  sit  particeps  quae 
in  regno  natis  competunt,  nisi  specialis  allectio  supervenerit." — De  Jur.  Fee.  p.  2. 
8.  ii.  xiv. 

(p)  Gunther,  vol.  ii.  pp.  266.  311.  n.  e. 

(q)  "  Illud  vero  sine  ulla  dubitatione  maxime  nostrum  fundavit  imperium,  et 
populi  Romani  nomen  auxit,  quod  principes  ille,  creator  hujus  urbis,  Romulus 
foedere  Sabino  docuit,  etiam  hostibus  recipiendis  augeri  hanc  rempublicam  opor- 
tere  :  cujus  auctoritate  et  exemplo  nunquam  est  intermissa  a  majoribus  nostris 
largitio  et  communicatio  civitatis." — Cic.  pro.  L.  Corn.  Balbo.  "  Maid  qui  pere- 
grinos  urbibus  uti  prohibent,  eosque  exterminant,  ut  Pennus  apud  patres  nostros, 
Papius  nuper." — De  Off.  1.  iii.  c.  xi. 


264  PHILLIMORE    ON    INTERNATIONAL    LAW. 

leave,  whether  it  be  expressed  or  by  implication  (as  in  the  case  of  mer- 
chants and  sea-faring  men),  granted,  but  there  is  a  time  always  supposed 
for  his  return ;  I  mean,  when  the  king  had  need  of  his  service ;  and  in 
the  case  of  every  man  of  quality  it  is  always  prefixed.  Besides  there  is 
no  doubt,  and  we  see  it  is  a  frequent  practice  in  England,  France,  &c., 
to  call  back  the  subjects  from  foreign  services  and  residences  within  a 
time  prefixed,  and  that  upon  pain  of  death ;  in  which  case,  if  they  return 
not,  the  pain  is  well  executed  upon  them,  (provided  they  lie  not  under 
r*3^fn  anv  imPediment,)  if  they  afterwards  fall  *into  the  hands  of  their 
J  master :  and  I  think  the  Court  of  Constable  and  Marshal  in 
England  would  be  the  proper  judicature  in  such  a  case. 

"  2.  Though  my  Prince  should  give  his  leave  to  settle  myself  for  in- 
stance, in  Sweden,  and  that  I  should  purchase  and  have  land  given  me 
in  Sweden,  upon  condition,  and  by  the  tenure  of  following  the  King  in 
his  wars ;  if  my  king  should  afterwards  have  a  war  with  Sweden,  that 
king  cannot  command  me  to  follow  him  against  my  natural  and  original 
master.  The  reason  of  it  is,  he  cannot  command  me  to  expose  myself 
more  than  his  own  natural-born  subjects  do  j  which  yet  would  be  my 
case,  if  I  should  appear  with  him  in  the  field  against  my  Natural  Liege 
Lord ;  into  whose  hands,  if  I  should  happen  to  fall  alive,  he  would  have 
a  right  to  punish  me  as  a  traitor  and  a  rebel,  and  put  me  to  the  torture 
and  ignominy  of  his  laws  at  home,  which  he  cannot  pretend  to  do  when 
he  takes  those  that  are  not  his  born  subjects,  nor  inflict  anything  upon 
them  but  what  is  agreeable  to  the  permissions  of  war. 

"  3.  Nay,  which  is  more,  in  the  case  of  Reprisals,  if  I  live  in  Sweden, 
a  Burgher,  Officer,  or  what  you  please,  and  a  Dane,  for  instance,  hath 
Letters  of  Reprisals  against  the  English  nation,  if  my  goods  fall  into  the 
Dane's  hands,  they  are  lawful  prize,  though  I  be  never  so  much  habit- 
uated in  Sweden ;  unless  it  proves,  that  I  am  so  transplanted  thither 
cum  pannis,  that  I  have  neither  goods  nor  expect  them  in  England,  and 
have  resolved  never  to  return  thither;  which  is  an  exception  that  some 
learned  men  allow  of,  but  not  all :  these  things  show  that  the  quality  of 
a  natural-born  subject  is  tied  with  such  indissoluble  bonds  upon  every 
man,  that  he  cannot  untie  all  by  any  means. 

"  I  am,  &c. 

"L.  JENKINS."(r) 

CCCXXIV.  A  change(s)  of  nationality  is  effected  by  the  operation  of 
the  law  upon  the  acts  of  the  individual.  The  wife  by  her  marriage  ac- 
quires the  nationality  of  her  husband  :  the  naturalisation  of  the  husband 
carries  with  it,  ipso  facto,  that  of  the  wife.  "  C'est  la  consequence  du 
lien  intime  qui  unit  les  epoux,  consacre  par  toutes  les  legislations,  et 
passe  ainsi  en  principe  du  droit  international."^) 

(r)  Life  of  Jenkins,  vol.  ii.  p.  713. 

(s)  Vide  post,  chapters  on  DOMICIL  under  COMITY. 

Fselix,  1.  i.  t.  i.  s.  2.  My  obligations  to  this  work  are  very  great,  though  in  the 
present  instance  there  is  a  departure  from  the  division  of  the  subject  adopted  by 
its  erudite  author;  of  whose  untimely  death,  during  the  progress  of  this  work,  I 
have  heard  with  sincere  regret. 

(t)  Fselix,  ib.  s.  40. 


RIGHT     OF    JURISDICTION     OVER    PERSONS.  265 

*Upon  the  same  principle,  the  naturalisation  of  the  father  ^.^--,-1 
carries  with  it  that  of  his  minor  children  ;  and  M.  Fselix  is  of  L 
opinion  that  the  naturalisation  of  a  widow  has  the  same  effect  upon  her 
minor  children. (u)     It  is  clear  that  in  neither  case  are  children,  majors 
by  the  law  of  the  land  of  their  birth,  affected  by  the  act  of  their  parents. 

CCCXXV.  A  collective  naturalisation  of  all  the  inhabitants  is  effected 
when  a  country  or  province  becomes  incorporated  in  another  country  by 
conquest,  cession,  or  free  gift.(v)  Under  the  old  law  of  France,  the 
Dutch  and  Swiss  and  other  nations  had,  by  virtue  of  Treaties,  the  rights 
of  natives  (indigenatus ;)  and  by  the  Bourbon  Family  Compact  of 
1761,  a  similar  privilege  was  conceded  to  Spanish  subjects. 

CCCXXVI.  The  laws  of  France  since  1790  have  contained  a  variety 
of  provisions  upon  the  means  of  acquiring  and  losing  naturalisation. (x\ 

By  the  law  now  in  force,  a  Frenchman  loses  his  native  character  by 
naturalisation,  or  by  accepting  office  without  the  permission  of  the  State, 
in  a  foreign  country,  or  by  so  establishing  himself  abroad  as  to  evidence 
an  intention  of  never  returning  to  his  country.  He  may,  however,  at 
any  time  recover  his  native  character  by  renouncing  his  foreign  office 
and  domicil,  and  making  due  application  to  the  State.(^) 

*In  the  Austrian  dominions  the  stranger  acquires  rights  of  r*qro-i 
citizenship  by  being  employed  as  a  public  functionary.  The  L 
superior  administrative  authorities  have  the  power  of  conferring  these 
rights  upon  an  individual  who  has  been  previously  authorised,  after  ten 
years'  residence  within  the  empire,  to  exercise  a  profession.  Mere 
admission  into  the  military  service  does  not  bring  with  it  naturalisation. 
Emigration  is  not  permitted  without  the  consent  of  the  proper  authori- 
ties; but  the  emigrant  who  has  obtained  permission,  and  who  quits  the 
empire  sine  animo  revertendi,  forfeits  the  privileges  of  an  Austrian  citizen. 
The  wife  of  an  Austrian  citizen  acquires  citizenship  by  her  marriage. 

In  Prussia  the  stranger  acquires  the  right  of  citizenship  by  his 
nomination  to  a  public  office  5  and  by  a  recent  law  (1842)  the  superior 
administrative  authorities  are  empowered  to  naturalise  any  stranger  who 
satisfies  them  as  to  his  good  conduct  and  his  means  of  existence.  Cer- 
tain exceptions  are  made  with  regard  to  Jews,  to  subjects  of  another 
state  belonging  to  the  Germanic  Confederation,  to  minors,  and  to  persons 
incapable  of  disposing  of  themselves.  The  same  rule  as  in  Austria 
applies  to  the  emigrant.  The  wife  of  a  Prussian  citizen  acquires  citizen- 
ship by  her  marriage. (2) 


(u)  Faelix,  1.  i.  t.  i.  s.  41.  (v)  Gunther,  vol.  ii.  p.  268,  n.  e. 

(x)  Faelix.  1.  i.  t.  i.  s.  2. 

(y)  Code  Civil,  1.  i.  t.  i.  c.  ii.  (De  la  Privation  des  Droits  civils.)  s.  17.  "  La 
qualite  de  Fran§ais  se  perdra  :— !•  Par  la  naturalisation  acquise  en  pays  etranger; 
2.  Par  1'acceptation  non  autorisee  par  le  roi,  de  fonctions  publiques  conferees  par 
un  gouvernement  etranger  ;  3.  Enfin,  par  tout  e"tablissement  fait  en  pays  (Stranger, 
sans  esprit  de  retour. 

"  Les  6tablissemens  de  commerce  ne  pourront  jamais  etre  conside"res  comme 
ayant  e^e"  faits  sans  esprit  de  retour. 

18.  "  Le  Frangais  qui  aura  perdu  sa  qualite"  de  Franc,aig,  pourra  toujours  la 
recouvrer  en  rentrant  en  France  avec  1'autorisation  du  roi,  et  en  declarant  qu'il 
veut  s'y  fixer,  et  qu'il  renonce  a  toute  distinction  contraire  a  la  loi  fra^aise." 

(z)  Faelix,  1.  i.  t.  i.  s.  2. 

AUGUST,  1854.— 18 


266  PHILLIMORE    ON    INTERNATIONAL    LAW. 

In  Bavaria,  by  the  law  of  1818,  ihejure  indigenatus  are  acquired  in 
three  ways  : — 

1.  By  the  marriage  of  a  foreign  woman  with  a  native. 

2.  By  a  domicil  taken  up  by  a  stranger  in  the  kingdom,  who  at  the 
same  time  gives  proof  of  his  freedom  from  personal  subjection  to  any 
foreign  state. 

3.  By  royal  decree. 

The  Bavarian  citizenship  is  also  lost  in  three  ways : — 

1.  By  the  acquisition,  without  the  special  permission  of  the  king,  of 
jure  indigenatus  in  another  kingdom. 

2.  By  emigration. 

*3.  By  the  marriage  of  a  Bavarian  woman  with  a  stranger. 
In  the  kingdom  of  Wurtemberg,  a  stranger  must  belong  to  a 
commune  in  order  to  acquire  citizenship,  unless  he  be  nominated  to  a 
public  function.     The  citizenship  is  lost  by  emigration  authorized  by 
the  Government,  or  by  the  acceptance  of  a  public  office  in  another  State. 

CCCXXVII.  In  the  Kingdom  of  the  Netherlands  the  power  of  con- 
ferring Naturalisation  rests  with  the  crown  by  the  9th  and  10th  article 
of  the  Fundamental  Law  of  1815. 

CCCXXVIII.  In  Russia,  Naturalisation  is  eifected  by  taking  an  oath 
of  allegiance  to  the  Emperor;  but  naturalised  strangers  may,  at  any 
time,  renounce  their  naturalisation  and  return  to  their  country. 

In  the  United  States  of  North  America,  the  constitution  confers  on 
Congress  the  power  to  establish  a  uniform  Rule  of  Naturalisation  ;(a) 
and  it  has  been  held  by  the  tribunals  of  the  highest  authority  in  that 
country,  that  the  power  so  vested  in  Congress  is  exclusive,  and  that  it 
cannot  be  exercised  by  any  one  of  the  Federal  States. 

CCCXXIX.  In  Great  Britian,  till  a  very  recent  period,  Naturalisation 
could  only  be  effected  by  an  Act  of  Parliament.  But  by  a  recent 
statute(i)  this  power  is  now  vested  in  one  of  the  Principal  Secretaries  of 
State,  who,  upon  receiving  a  petition  from  an  alien  meaning  to  reside  in 
the  United  Kingdom,  and  desirous  of  being  naturalised,  may  issue  a 
certificate,  to  be  enrolled  in  the  High  Court  of  Chancery,  granting  to 
r*^f>n  ^e  rnemoria^s^  upon  his  taking,  within  sixty  *days  from  the 
J  date  of  the  certificate  a  prescribed  oath,  all  the  rights  and  capa- 
cities of  a  natural-born  British  subject,  except  the  capacity  of  being  a 
member  of  the  Privy  Council  or  a  member  of  either  House  of  Parlia- 
ment. The  Secretary  has  the  power  of  excepting  other  rights  if  he  be 
so  minded,  but  these  he  must  except.  This  Statute  also  enacts  that 
every  person  born  of  a  British  mother  shall  be  capable  of  holding  real 

(a)  Vide  supra,  ch.  v.  cxix. 

1  Kent,  p.  422,  Pt.  2.  1.  xix.  (5). 

2  Dallas  Rep.  370. 

3  Washington  Circuit  Rep.  313. 
2  Wheaton's  Rep.  269. 

5  Wheaton's  Rep.  49. 
2  Kent,  63. 

(b)  7  &  8  Viet.  c.  Ixvi.     "  An  act  to  amend  the  Law  relating  to  Aliens,"  repeal- 
ing 12  &  13  W.  III.  c.  ii.,  1  G.  I.  s.  ii.  c.  IT.,  14  G.  III.  c.  Ixxxiv.,  so  "far  as  they 
may  be  inconsistent  with  this  Act. 


RIGHT    OF    JURISDICTION    OVER    PERSONS.  267 

or  personal  estate  ;  that  an  alien  friend  may  hold  every  species  of  per- 
sonal property,  except  what  are  known  to  English  Law  as  Chattels  Heal ; 
and  that  every  subject  of  a  friendly  state,  who  may  reside  in  any  part 
of  the  United  Kingdom,  may  hold  lands  and  tenements  for  the  purposes 
of  residence  or  trade  for  the  space  of  twenty-one  years,  in  the  same 
manner  as  a  natural-born  subject.  This  statute  does  not  affect  any  rights 
of  aliens  existing  previously  to  it,  and  confers  on  all  persons  naturalised 
before  it  passed,  who  have  resided  five  successive  years  in  the  United 
Kingdom,  the  same  privileges  as  aliens  who  have  availed  themselves  of 
its  provisions. 

CCCXXX.  A  great  difficulty  has  arisen  with  respect  to  the  legal 
status  of  liberated  Africans,  who  reside  and  trade  and  acquire  property 
in  the  British  territory  .at  Sierra  Leone  ;  but  who,  not  being  naturalised 
subjects,  frequently  commit  with  impunity  the  offence  of  buying  and 
selling  slaves  without  the  boundary  of  the  territory.  An  ordinance 
passed  the  legislature  of  Sierra  Leone  (June  8,  1852)  "  to  secure  and 
confer  upon  liberated  Africans  the  civil  and  political  rights  of  natural- 
born  British  subjects •"  but  it  was  disallowed  by  the  crown  of  England, 
as  it  would  appear,  upon  the  ground  that  by  the  instrumentality  of 
Treaties  more  amply  worded  with  the  African  chiefs,  the  provisions  of 
the  stat.  6  &  7  Victoria,  c.  98,  might  be  made  applicable  to  liberated 
Africans,  though  not  British  subjects,  within  the  Queen's  territories.(c) 

*CCCXXXI.  The  Right  of  Jurisdiction  }(d)  Civil  and  Crimi- 
nal,  over  all  Persons  and  Things  within  the  territorial  limits, 
which  is  incident  to  a  State  relatively  to  its  own  subjects  and  their  pro- 
perty, extends  also,  as  a  general  rule,  to  foreigners  commorant  in  the 
land.  This  subject  has  been  already  touched  upon  under  the  title  of 
11  liigJit  to  Self -Preservation"  and  will  be  again  considered  in  the  chap- 
ter on  "  Extradition" 

CCCXXXII.  With  respect  to  the  administration  of  Criminal  Law,  it 
must  be  remembered  that  every  individual,  on  entering  a  foreign  terri- 
tory, binds  himself  by  a  tacit  contract  to  obey  the  laws  enacted  in  it  for 
the  maintenance  of  the  good  order  and  tranquillity  of  the  realni,(e)  and 

(c)  See  Papers  relative  to  the  rights  of  liberated  Africans,  and  the  prevention 
of  Slave-dealing  at  Sierra  Leone;   laid  before  Parliament,  August  12,  1853,  p. 
30,  &c. 

(d)  "  Ad  gubernationem  populi  moraliter  necessarium  est,  ut  qui  ei  vel  ad  tempus 
se  admiscent,  quod  fit  intrando  territorium,  ii  conformes  se  reddant  ejus  populi 
institutis." — Grotius,  1.  ii.  c.  ii.  s.  v.  p.  191. 

"Pro  subjectis  imperii  habendi  sunt  omnes  qui  intra  terminos  ejusdem  reperi- 
unter,  sive  in  perpetuum  sive  in  temps  commorantur." — Huberus  de  Conflictu 
Legum,  1.  i.  t.  iv.  s.  ii. 

"  In  regard  to  foreigners  resident  in  a  country,  although  some  jurists  deny  the 
right  of  a  nation  generally  to  legislate  for  them,  it  would  seem  clear  upon  general 
principles  t"hat  such  a  right  did  exist." — Story,  Conflict  of  Laws,  s.  541. 

Wheaton,  Ele"m.  t.  i.  p.  2.  c.  ii.  pp.  137-8. 

See  Correspondence  between  some  of  the  Continental  Powers  and  Great  Britain 
respecting  the  Foreign  Refugees  in  London,  presented  to  both  Houses  of  Parlia- 
ment by  command  of  Her  Majesty,  1852. 

De  delictis  Peregrinorum,  eaque  puniendi  ratione  (Diss.  Jurid.  Inaug.)  :  Homan, 
Groning.  1823,  p.  33,  &c. 

(e)  "  Quare  etiamsi  peregrinus  cum  cive  paciscatur,  tenebitur  illis  legibus,  quia 


268 


PHILLIMORE     ON     INTERNATIONAL     LAW. 


it  is  manifestly  not  only  the  right,  but  the  duty  of  a  State  to  protect 
*'^e  or<^er  anc^  safety  °f  the  society  entrusted  to  its  charge, 
equally  against  the  offences  of  the  foreigner  as  of  the  native. (/) 
This  proposition,  it  should  be  observed,  must  not  be  confounded  with 
another,  namely,  the  alleged  right  or  duty  of  a  State  to  punish  a  citizen 
for  an  offence  committed  without  its  territory, — this  is  a  proposition  of 
Municipal,  the  other  is  one  of  International  Law.  The  strict  rule  of 
Public  Law  undoubtedly  is,  that  a  State  can  only  punish  for  offences 
committed  within  the  limits  of  its  territory  :  this  is,  at  least,  the  natural 
and  regular  consequence  of  the  territorial  principle. 

Nevertheless  it  is  a  pretty  general  maxim  of  European  Law,  that 
offences  committed  against  their  own  country,  by  citizens  in  a  foreign 
country,  are  punishable  by  their  own  country  when  they  return  within 
its  confines.  It  is,  however,  clearly  within  the  competence  of  the  State, 
within  whose  territories  the  offence  has  been  committed,  to  punish  the 
offender,  and  especially  if  the  offence  has  not  been  of  a  public  character 
against  the  foreign  State,  but  of  a  private  character  against  a  brother 
citizen  of  the  offender.  But  in  cases  of  a  public  character,  a  double 
offence  is  committed ;  one  against  the  State  of  which  the  offender  is  a 
subject,  another  against  the  general  law  of  the  land  within  which  the 
offence  is  devised  and  perpetrated.  There  is  a  maleficiorum  concursus. 
Whether  *the  State  of  the  offender  will  punish  him  after  he  had 
been  punished  by  the  State  within  whose  limits  he  committed 
the  offence,  is,  as  indeed  the  whole  question  is,  a  matter  of  Public  rather 
than  of  International  Law.(</) 

The  French  Law,  as  a  general  maxim,  holds  that  penal  justice  is  con- 
fined within  territorial  limits,  but  with  the  following  exceptions  :(h} — I. 

qui  in  loco  aliquo  contrahit,  tanquam  subditus  temporariuslegibus  loci  subjecitur." — 
Grotius,  1.  ii.  c.  xi.  5.  2. 

"  Quia  actionis  peregrinorum  quamdiu  in  alieno  territorio  versantur,  vel  com- 
jnorantur,  subjacent  legibus  loci  in  quo  sunt,  si  peregrini  in  territorio  alieno  delin- 
quunt  juxta  leges  loci  puniendi  sunt." — Wolff,  Jus  Gent.  s.  301. 

Vattel,  1.  c.  8.  101. 

Rocco,  Dell'  TJso  delle  Leggi  delle  Due  Sicilie,  p.  161. 

Martens,  s.  99. 

Kliiber,  s.  62. 

Masse,  Le  Droit  commerc.,  &c. ;  Devoir  des  etrangers,  t.  ii.  p.  53,  &c. 

(/)  Martens,  s.  97. 

Tittman,  DieStrafrechtspflegeinVo'lkerrecb.tlicb.erRucksicht,  11  (Dresden,  1817). 

Feuerbach,  Lehrbuch,  31. 

Portalis :  "  Chaque  etat  a  le  droit  de  veiller  a  sa  conservation,  et  c'est  dans  ce 
droit  que  reside  la  souverainete".  Or  comment  un  6tat  pourraitil  se  conserver  et 
maintenir,  s'il  existait  dans  son  sein  des  hommes,  qui  pussent  impunement  enfrein- 
dre  sa  police  et  troubler  sa  tranquillity.  Le  pouvoir  souverain  ne  pouvrait  rem- 
plir  la  fin,  pour  laquelle  il  est  e"tabli,  si  des  hommes  Strangers  ou  nationaux  dtaient 
inde"pendants  de  ce  pouvoir.  II  ne  peut  etre  limite,  ni  quant  aux  choses,  ni  quant 
aux  personnes.  11  n'est  rien  s'il  n'est  tout.  La  qualite1  d'etranger  ne  saurait  etre 
une  exception  le*gitime  pour  celui,  qui  s'en  preVaut  contre  la  puissance  publique, 
qui  re"git  le  pays  dans  lequel  il  reside.  Habiter  le  territoire,  c'est  se  soumettre  a 
la  souverainete"." — Code  Civ.:  suivi  de  1'expos^  des  Motifs,  t.  ii.  p.  12. 

(</)  H.  A.  M.  Van  Asch  Van  Wijck,  De  delictis  extra  Regni  territorium  admissis. 
Cf.  prsesert.  cap.  i.  s.  4.,  cap.  ii.  s.  3.,  cap.  iii.  s.  3.  (Utreclit,  1839). 

(A)  "  5.  Tout  Francais  que  se  sera  rendu  coupable,  hors  du  territoire  de  France, 
d'un  crime  attentatoire  ii  la  surete"  de  1'Etat,  de  contrefaction  du  sceau  de  1'Etat,  de 
monnaies  nationales  ayant  cours,  de  papiers  nationaux,  de  billets  de  banque  auto- 


RIGHT    OF    JURISDICTION    OVER    PERSONS.  269 

If  the  offence  be  against  the  welfare  and  safety  of  the  State,  whether  it 
has  been  committed  by  a  Frenchman  or  a  foreigner : — II.  With  respect 
to  private  offences  in  cases  where  the  following  conditions  are  com- 
bined— 

1.  That  the  offence  be  of  sufficient  gravity  to  constitute  a  crime. 

2.  That  it  has  been  committed  by  a  Frenchman  against  a  Frenchman. 

3.  That  the  offender  has  returned  to  France. 

4.  That  he  has  been  indicted  in  France  by  the  injured  party. 

In  the  United  States  of  North  America,  and  in  the  British  dominions, 
the  rule  of  confining  penal  justice  to  the  territory,  in  which  the  offence 
has  been  committed,(i)  has  been  most  rigidly  adhered  to.  But  the  lat- 
ter country  has  so  far  *relaxed  the  severity  of  her  adherence  to  r*oKo-i 
this  strict  rule  of  International  Law  as  to  allow  crimes  of  murder  L 
and  manslaughter  committed  out  of  England,  when  both  the  offender 
and  the  offended  are  subjects  of  the  British  crown,  and  when  this  fact 
has  been  averred  in  the  indictment,  to  be  tried  in  England.  Whether 
they  must  be  British- born  subjects  appears  to  be  a  doubtful  point ;  but, 
in  spite  of  one  decision  in  the  affirmative,  the  better  construction  of  the 
statutes  affecting  this  matter  would  appear  to  be,  that  a  foreigner,  owing 
allegiance  in  return  for  protection,  would  be  within  the  scope  of  their 
provisions. (&) 

All  indictable  offences  committed  within  the  Admiralty  Jurisdiction, 
that  is,  on  the  high  seas,  are  offences  of  the  same  nature,  and  liable  to 
the  same  punishment,  as  if  they  had  been  committed  on  land  (?)  These 

rise's  par  la  loi,  pourra  6tre  poursuivi,  juge"  et  puni  en  France,  d'apres  les  disposi- 
tions des  lois  Frangaises"  (I.  7.  24.). 

"  6.  Cette  disposition  pourra  £tre  e*tandue  aux  (Strangers  qui,  auteurs  ou  com- 
plices des  memes  crimes,  seraient  arretes  en  France,  ou  dont  le  gouvernement 
obtiendrait  1'extradition"  (I.  24.). 

"  7.  Tout  Frangais  qui  se  sera  rendu  coupable,  hors  du  territoire  du  royaume, 
d'un  crime  centre  un  Frangais,  pourra,  a  son  retour  en  France,  y  etre  poursuivi  et 
juge,  s'il  n'a  pas  e"te"  poursuivi  et  juge"  en  pays  Stranger,  et  si  le  Frangais  offense* 
rend  plainte  contre  lui"  (I.  24.). 

French  Code,  "  Code  d'Instruction  Criminelle,"  p.  1. 

(i)  Delicta  puniuntur  juxta  mores  loci  commissi  delicti,  et  non  loci  ubi  de  cri- 
mine  cognoscitur." — Bartolus,  ad  \  final,  lex  saccularii  citat.  ob.  in  1.  I.,  cunctos 
populos  ;  C.  de  summo  trinit.  in  1.  questionem ;  and  Henry  on  Foreign  Law,  p.  47. 
(&)~Statutes  relating  to  offences  committed  by  British  subjects  in  foreign  states : — 
33  Hen.  VIII.  c.  23.,  repealed  by  9  Geo.  IV.  c.  31.  ss.  7,  8 ;  latter  section  applies 
to  cases  where  the  death,  or  the  cause  of  the  death  only,  happens  in  England. 
Cases  under  33  Hen.  VIII.  c.  23  : 

Governor  Wall's  case,  28  State  Trials,  p.  51,  A.  D.  1802. 
Rex  v.  Lepardo,  1    Taunton's  Rep.  26 ;   Russell   and  Ryan's  Crown  Cases 
Reserved,  134,  A.  D.  1807.     Offender  Lepardo  discharged  because  he  was  a 
foreigner. 

Rex  v.  Sawyer,  Russell  and  R.  294,  A.  D.  1815. 
Cases  under  9  Geo.  IV.  c.  31 : 

Rex  v.  Helsham,  4  Carrington  and  Payne's  Rep.  294. 
Rex  v.  M.  A.  de  Mattos,  7  Carrington  and  Payne,  458. 

See  remarks  of  Solicitor- General  as  to  preceding  case,  and  Justice  Vaughan's 
charge  to  the  jury. 

(1)  Statutes  relating  to  offences  on  the  high  seas,  or  in  slavers,  &c.: — 
15  Rich  II.  c.  3. 
28  Hen.  VIII.  c.  15.  s.  1. 
46  Geo.  III.  c.  54. 


270  PHILLIMORE    ON    INTERNATIONAL    LAW. 

r*QfiOi  ^atutes  were  necessary  *because,  by  the  Common  Law,  the  grand 
-I  jury  are  sworn  to  inquire  only  for  the  body  of  the  county,  and  can- 
not, without  the  help  of  an  Act  of  Parliament,  inquire  of  a  fact  done  out 
of  that  county  for  which  they  are  sworn. (m) 

CCCXXXIII.  The  exercise  of  Civil  Jurisdiction  over  foreigners  wiH 
be  chiefly  considered  under  the  subsequent  title  of  COMITY. 

It  will  be  sufficient  to  remark  here  that  the  Right  of  Jurisdiction  and 
authority  over  a  merely  com morant  foreigner,  though  he  be  subditus  tem- 
porarius,  does  not  extend  to  compelling  him  to  render  civil  or  military 
services;  or  to  the  power  of  trying  or  punishing  a  foreigner  for  an  offence 
committed  in  a  foreign  land.  This  rule  applies  even  where  the  offence 
has  been  against  the  State  in  which  the  foreign  offender  is  now  commo- 
rant;  and  much  more  forcibly  against  an  extravagant  pretension  some- 
times put  forth,  to  the  effect  that  the  general  powers  of  a  State  extend 
to  punish  all  wrongdoers  wheresoever  the  wrong  may  have  been  done.(«) 
So  long  as  there  are  different  States  with  different  laws,  no  single  State 
can  have  a  right  to  punish,  by  its  own  laws,  citizens  of  another  State, 
for  offences  committed  in  places  over  which  it  has  no  jurisdiction;  or  to 
punish  according  to  what  it  may  conceive  to  be  the  law  of  the  place 
where  the  offence  was  committed. 

This  assumed  Jurisdiction  is  doubly  reprehensible : — First,  as  being  a 
r*3P01  usurPati°n  °f  tne  Rights  of  another  State;  and  *Secondly,  as 
-I  being  a  violation  of  what  Hefftcrs  justly  calls  a  ruling  maxim 
(herschende  Grundsatz)  of  all  constitutional  States, — that  no  man  can  be 
withdrawn  from  the  tribunal  to  which  he  is  naturally  and  legally  subject, 
and  compelled  to  plead  before  another. (o) 


[*361]  *CHAPTER     XIX. 

EXCEPTIONS   TO   THE   TERRITORIAL  RIGHT   OP  JURISDICTION. 

CCCXXXIV.  We  have  now  to  consider  certain  exceptions  to  the 
sound  and  important  rule  laid  down  in  the  last  chapter,  which  is  built 
upon  the  maxim  of  the  Roman  Law,  "extra  territorium  jus  discenti 
impune  non  paretur."(a) 

9  Geo.  IY.  c.  31.  s.  32. 

4  &  5  W.  IV.  c.  36.  s.  22. 
Statutes  relating  to  offences  committed  out  of  England,  in  particular  places  ; — 

10  &  11  W.  III.  c.  25. 
59  Geo.  III.  c.  75. 

(TO)  Stephen's  Blackstone,  vol.  iv.  p.  370.  (Bk.  vi.  ch.  18.) 
Russell  on  Crimes,  ed.  Greaves  (1843),  vol.  i.  p.  549.  &c.  (Bk.  iii.  ch.  1.  s.  6.) 
(re)  Lord  Stowell,  speaking  of  slavery,  says  that  it  has  been  suggested  to  the 
Court  "  that  this  trade,  if  not  the  crime  of  Piracy,  is  nevertheless  crime,  and  that 
every  nation,  indeed  every  individual,  has  not  only  a  right,  but  a  duty,  to  prevent 
in  every  place  the  commission  of  crime.     It  is  a  sphere  of  duty  (he  adds)  suffi- 
ciently large  that  is  thus  opened  out  to  communities  and  their  members." — "  The 
Le  Louis,"  2  Dodson's  Adm.  Rep.  p.  248. 
(o)  Heffters,  s.  36.  n.  4. 
(a)  Dig.  ii.  1,  20. 


TERRITORIAL    JURISDICTION.  271 

The  First  class  of  exceptions  to  this  rule  is  founded  upon  long  usage 
and  the  reason  of  the  thing,  and  relates  principally  to  the  status  of  Chris- 
tians in  Infidel  countries. 

So  early,  indeed,  as  the  sixth  century,  a  derogation  from  the  rule  of 
European  International  Law  began  to  develope  itself. 

After  the  fall  of  the  Eastern  Empire,  the  Code  of  the  Visigoths,  not 
the  least  remarkable  monument  of  the  Middle  Ages,  conceded  to  foreign 
merchants  the  privilege  of  being  tried  by  judges  selected  from  among 
their  own  countrymen. (b*)  But  after  the  Ottoman  power  became  esta- 
blished in  Europe,  Christian  nations  trading  with  the  territories  subject 
to  that  power,  obtained  from  it,  at  different  periods,  a  concession  of  ex- 
clusive authority  over  their  own  subjects,  nearly  identical  *with 
that  which  the  Christians  juscommune(c)  had  conceded  to  foreign 
ships  of  war  in  their  ports. 

The  vital  and  ineradicable  differences(d)  which  must  always  separate 
the  Christian  from  the  Mahometan  or  Infidel,  the  immiscible  character 
which  their  religion  impresses  upon  their  social  habits,  moral  sentiments, 
and  political  institutions,  necessitated  a  departure  from  the  strict  rule  of 
Territorial  Jurisdiction,  in  the  case  of  Christians  who  founded  commer- 
cial establishments  in  Ottoman  or  Infidel  dominions. 

France,  as  early  as  the  beginning  of  the  sixteenth  century,  stipulated 
that  her  subjects  throughout  those  districts,  generally  known  as  the 
Echelles  du  Levant,  should  be  exclusively  justiciable  in  criminal  and 
civil  matters  before  their  own  tribunals,  and  according  to  their  own 
laws;(e)  and  this  privilege  has  been  continued  by  a  series  of  subsequent 
capitulations  or  diplomas  of  concession. 

CCCXXXV.  The  concessions  by  the  Porte  to  the  British  Crown(/) 
began  in  the  reign  of  Queen  Elizabeth.  A  Treaty  in  1675,  (art.  18.) 
recited  that  British  enjoyed  the  same  privilege  as  French,  Venetian,  and 
other  subjects.  Orders  of  council(^)  and  Acts  of  Parliament^)  have, 
at  different  times,  prescribed  the  manner  in  which  the  Crown  shall  exer- 
cise this  jurisdiction.  The  latest  and  most  important  statute,  which 
being  one  passed  in  the  sixth  and  seventh  years  of  the  present  Queen, 
enables  her  to  exercise  any  power  or  jurisdiction  which  she  now  has,  or 

(6)  Miltitz,  Manuel  des  Consuls,  1. 1.  i.  ch.  iv.  s.  2.  p.  161.,  1.  ii.  ch.  i.  s.  1.  p.  4.  n.  2. 

"  Dum  transmarini  negotiatores  inter  se  causam  haberent  nullus  de  sedibus  nos- 
tris  eos  audire  praesumat,  nisi  tantummodo  suis  legibus  audiantur  apud  telonarios 
suos."  These  Telonarii  were  in  fact  Prjetores  Peregrini. 

Montesquieu,  Esp.  des  Lois,  1.  xxi.  ch.  19. 

Amasis  (579  A.  J.  c.)  is  said  to  have  permitted  the  Greeks  established  at  Nau- 
cratis  in  Egypt  to  choose  magistrates  from  their  own  nation  for  the  decision  of  dis- 
putes among  themselves  (Herod,  ii.  179). 

(c)  See  this  phrase  frequently  in  the  letters  of  Sir  L.  Jenkins  which  contain 
responsa  upon  questions  of  Public  and  International  Law. — Life,  vol.  ii.  pp.  719-20. 

(d)  Vide  ante,  p.  82. 
Vide  post,  CONSULS. 

e)  Ortolan,  Dipl.  de  la  Mer,  t.  i.  pp.  311-14. 
/)  Miltitz,  t.  ii.  779.  &c.  (1.  iii.  c.  1.  s.  v.  par.  29.) 
g)  Hertslet's  Treaties,  vol.  vi.    Orders  in  1830,  1839,  1843. 
A)  6  &  7  W.  IV. 
6  &  7  Viet.  c.  94. 


272  PHILLIMORE     ON     INTERNATIONAL     LAW. 

hereafter  maJ  have,  within  *any  country  out  of  her  dominions, 
in  the  same  manner  as  if  her  Majesty  had  acquired  such  power 
and  jurisdiction  by  the  cession  or  conquest  of  territory. 

Generally, (t)  it  may  be  said  that  the  Consuls  of  Christian  Powers 
residing  in  Turkey,  and  the  Mahometan  countries  of  the  Levant,  exercise 
an  exclusive  Criminal  and  Civil  Jurisdiction  over  their  fellow-country- 
men. The  Criminal  Jurisdiction  is  usually  limited  to  the  infliction  of  a 
pecuniary  fine ;  in  graver  cases,  the  Consul  exercises  the  functions  of  a 
juge  d 'instruction,  collecting  evidences  of  the  crimes,  and  transmitting 
them  to  the  tribunals  of  their  own  country. (A;) 

CCCXXXVI.  With  respect  to  British  subjects  in  China,(^  an  Order 
in  Council  issued  on  the  13th  of  June,  1853,  which  recited  "that  by 
treaty,  grant,  sufferance,  or  other  lawful  means  Her  Majesty  hath  power 
and  jurisdiction  over  British  subjects  within  the  dominions  of  the  Empe- 
ror of  China,  and  the  same  or  certain  parts  thereof  have  heretofore  been 
exercised,  on  behalf  of  Her  Majesty,  by  Her  Majesty's  Consular  officers, 
resident  within  the  said  dominions," (m)  and  proceeded  to  make  regula- 
tions for  the  administration  of  civil  and  criminal  justice  over  all  subjects 
u  being  within  the  dominions  of  the  Emperor  of  China,  or  being  within 
any  ship  or  vessel  at  a  distance  of  not  more  than  one  hundred  miles 
from  the  coast  of  China.'Yfi)  By  one  of  the  regulations(o)  of  this  Order 
it  is  provided  that  the  Supreme  Court  of  Hong  Kong  may  take  cogni- 
r*3fi4.l  zaace  °^  °ffences  committed  by  "'British  subjects  within  the  pen- 
-I  insula  of  Macao,  but  may  not  issue  any  writ  or  warrant  to  be 
served  therein. (^>) 

CCCXXXVII.  The  whole  question  of  the  Consular  Jurisdiction  will 
be  discussed  in  a  later  part  of  this  Work,  under  the  title  CONSULS. 

CCCXXXVIII.  The  Second  class  of  recognized  exceptions,  which 
entitle  foreigners  who  are  the  subjects  of  them  to  be  considered  as  morally 
without,  though  physically  within,  the  territorial  limits,  relate  to  Foreign 
Sovereigns  passing  through,  or  temporarily  residing  in  the  territory  of 
another  state ;  they  are  held  not  to  be  amenable  to  the  jurisdiction,  civil  or 
criminal,  of  its  tribunals.  They  represent  the  nation  of  which  they  are 
sovereigns,  and  being  permitted  to  enter  a  foreign  State  are  entitled,  by 
International  Law,  to  be  considered,  both  as  to  their  own  person  and 
effects,  and  as  to  those  of  their  attendants,  as  being  still  within  their  own 
dominions.^) 

(i)  Wheaton's  El&n.  i.  136. 

(&)  The  labourious  and  valuable  work  of  Miltitz,  cited  above,  contains  a  mine 
of  historical  information  upon  this  subject. 

(I)  See  3  &  4  W.  IV.  c.  93. 

6  &  7  Viet.  c.  80. 

(m)  See  papers  laid  before  Parliament,  1853. 

(n)  Regulations  X.  XL  XII.  provide  for-  the  administration  of  civil  justice  in 
cases  where  both  parties  to  the  suit  are  British  subjects,  or  where  one  is  a  British 
and  one  a  Chinese  subject. 

(o)  XLV.  (p)  As  to  Persia,  see  Miltitz,  i.  777,  &c.  (1.  iii.  c.  1,  s.  v.  par.  29.) 

Hertslet's  Treaties,  i.  408. 

De  M.  et  De  C.  v.  153.  Traite  entre  Gr.  Bretagne  et  Perse,  Te'beran,  28  Oct. 
1841. 

(q)  Vide  post,  Chapters  on  the  subject  of  SOVEREIGNS  and  AMBASSADORS. 


I 

TERRITORIAL     JURISDICTION.  273 

Thirdly.  The  same  immunity  is  applicable  to  the  Ambassador  or  duly 
accredited  Public  Minister  of  a  foreign  State,  as  will  be  considered  more 
at  length  in  a  later  part  of  this  Work. 

Fourthly.  If  a  foreign  army  be  permitted  to  pass  through,  or  be  sta- 
tioned in,  the  territories  of  another  State,  the  persons  composing  that 
army,  or  being  within  its  lines,  are  entitled  to  exterritorial  privileges. 

Fifthly.  All  ships,  public  or  private,  upon  the  high  seas,  are  subject 
only  to  the  jurisdiction  of  the  country  to  which  they  belong,  (r)  This 
last  subject  requires  a  fuller  discussion. 

*CCCXXXIX.  The  nature  and  extent  of  these  exterritorial  r*ocK-i 
privileges  will  be  discussed  at  length  hereafter ;  it  is  enough,  L 
therefore,  to  have  given  a  brief  summary  of  them  in  this  place.  Those 
entitled  to  such  privilegee  retain  the  domicil  of  their  own  country,  with 
all  the  incidental  rights  affecting  their  persons  or  property,  (s)  This  rule 
may  not  in  every  conceivable  case  exclude  the  possibility  of  a  domicil 
in  the  country  where  the  privileged  person  is  residing — a  domicil  for  cer- 
tain purposes,  at  least.  For  instance,  it  is  possible  that  an  ambassador 
may  be.  sent  to  the  place  of  his  native,  or  of  a  subsequently  acquired^ 
domicil;  but  the  general  rule  is  as  has  been  stated. (w) 

"When  a  person  is  admitted  to  exterritorial  privileges,  the  things  that 
belong  to  him,  and  the  persons  that  form  part  of  his  household  or  suite, 
are,  generally  speaking,  sheltered  under  the  same  immunities.  These  pri- 
vileges exempt  them  from  liability  to  the  civil  or  criminal  tribunals.  It 
is  however  possible,  that  even  privileged  persons,  by  mixing  themselves 
up  with  the  trade  or  commerce  of  the  country,  or  by  becoming  owners 
of  immovable  property  therein,  might  of  necessity  be  in  some  measure 
amenable  to  the  civil  tribunals. 

The  privilege  does  not  extend  to  real  or  immovable  property.  This, 
like  the  property  of  a  native,  is  subject  to  the  municipal  law  of  the 
land.(v)  The  privileged  person  is  free  *from  the  payment  of 
taxes  or  duties  of  any  kind ;  but  not  from  paying  the  tolls  upon 
the  public  ways  over  which  he  travels,  or  any  public  impost  attached  to 
the  use  of  a  public  institution  or  thing. 

CCCXL.  The  important  exception(x)  to  the  rule  of  International  Law 

(r)  Wheaton,  Ele"m.  i.  119,  citing  Casaregis  Discurs.  pp.  136 — 174:  "Exceptis 
tatnen  ducibus  et  generalibus  alicujus  exercitiis,  vel  classis  maritimi,  vel  ductoribus 
alicujus  navis  militaris  nam  isti  in  suos  milites,  gentem  et  naves,  libere  jurisdic- 
tionem  sive  voluntariam,  sive  contentiosam,  sive  civilem,  sive  criminalem,  quod 
occupant  tanquam  in  suo  proprio  exercere  possunt." 

(«)  Heffters,  s.  42. 

Vide  post,  Chapters  on  SOVEREIGNS  and  AMBASSADORS. 

(t]  Heffters,  s.  42,  i.  n.  3,  citing  Treaty  of  Westphalia,  v.  28:  "  Nisi  forte  in  qui- 
busdam  locis  ratione  bonorum  et  respectu  territorii  vel  domicilii  aliis  statibus 
reperiantur  subject!." 

(u)  Bynkershoek,  De  Foro  Leg.  c.  xi.  5,  c.  xviii.  6.  (t>)  Heffters,  s.  42,  vi. 

Wiquefort,  L'Ambassadeur,  i.  28.  p.  422. 

Bynkershoek,  de  Foro  Leg.  c.  xv.  6.,  c.  xvi. 

Merlin,  Rep.  Ministre  Public,  s.  4,  5.  Art.  6,  8. 

It  has  been  recently  decided,  that  personal  property  situated  in  Great  Britain, 
of  a  person  dying  domiciled  abroad,  does  not  pay  the  usual  duties  to  the  crown. — 
Vide  post,  DOMICIL. 

(x)  Grotius. 


274  PHILLIMORE    ON    INTERNATIONAL    LAW. 

respecting  territorial  jurisdiction  afforded  in  the  instance  of  Foreign  Ships 
lying  in  the  harbours  and  ports  of  another  State,  requires  a  twofold  con- 
sideration— as  to 

1.  Foreign  Ships  of  War. 

2.  Foreign  Ships  of  Commerce. 

CCCXLI.  First,  with  respect  to  Foreign  Ships  of  War.(y) — Long 
usaSe  an<^  universal  custom  entitles  every  *such  ship  to  be  con- 
sidered  as  a  part  of  the  State  to  which  she  belongs,  and  to  be 
exempt  from  any  other  jurisdiction ;  whether  this  privilege  be  founded 
upon  strict  International  Right,  or  upon  an  original  concession  of  Com- 
ity, with  respect  to  the  State  in  its  aggregate  capacity, (z)  which,  by 
inveterate  practice,  has  assumed  the  position  of  a  Right,(a)  is  a  con- 
sideration of  not  much  practical  importance.  But  it  is  of  some  import- 
ance, for,  if  the  better  opinion  be,  as  it  would  seem  to  be,  thatlhe  pri- 
vilege in  question  was  originally  a  concession  of  Comity,  it  may,  on  due 
notice  being  given,  be  revoked  by  a  State,  so  ill  advised  as  to  adopt  such 
a  course,  which  could  not  happen  if  it  were  a  matter  of  Natural  Right. 
But,  unquestionably,  in  the  case  of  the  Foreign  Ship  of  War,  as  of  the 
Foreign  Sovereign  and  Ambassador,  every  State  which  has  not  formally 
notified  its  departure  from  this  usage  of  the  civilized  world,  is  under  a 
tacit  convention  to  accord  this  privilege  to  the  Foreign  Ship  of  War  lying 
in  its  harbours. (6) 

CCCXLII.  The  authority  of  so  great  a  jurist  as  Dr.  Story,  delivering 

Vattel,  1.  i.  c.  xix.  s.  216. 

Giinther,  ii.  257-8,  note. 

Martens. 

Ortolan,  Diplomatic  de  la  Her,  1.  ii.  ch.  9,  10.  13. 

The  Schooner  Exchange  v.  M'Fadden  and  Others,  7  Cranch's  (American)  Reports, 
pp.  135—147. 

Wheaton,  Ele"m.  pp.  124—134. 

Kent's  Commentaries,  i.  157.  note  e,  (ed.  1851.) 

Heffters,  s.  78. 

(y)  Kliiber,  s.  55.  (5) :  "Bei  Kriegsschiffen  in  fremdem  Seegebiet,  welchen  nach 
allgemeinem  Herkommen  die  Ausiibuug  der  Gerichtbarkeit  nach  den  Gesetzen 
ihres  Staates  ub6r  ihre  Gerichtpflichtigen  zukommen." 

"  Si  les  eiifants  sont  nes  dans  un  vaisseau  de  la  nation  [ship  of  war],  ils  peuvent  etre 
reputes  nes  dans  le  territoire,  car  il  est  naturel  de  conside"rer  les  vaisseaux  de  la 
nation  comme  des  portions  de  son  territoire,  surtout  quand  ils  voguent  sur  une 
mer  libre,  puisque  FEtat  conserve  sa  jurisdiction  dans  ces  vaisseaux.  Et  comme 
suivant  1'usage  commune'ment  re<ju,  cette  jurisdiction  se  conserve  sur  le  vaisseau, 
meTne  quand  il  se  trouve  dans  les  parties  de  la  mer  soumises  a  une  domination 
gtrangere,  tous  les  enfants  nes  dans  les  vaisseaux  d'une  nation,  seront  censes  nes 
dans  son  territoire.  Par  la  me'me  raison,  ceux  qui  naissent  sur  un  vaisseau  etranger 
seront  reputes  nes  en  pays  etranger,  a  moins  que  ce  ne  fut  dans  le  port  meme  de 
la  nation;  car  le  port  est  plus  particulierement  du  territoire,  et  la  mere,  pour  6tre 
en  ce  moment  dans  le  vasseau  etranger  [this  must  mean  merchant  ship]  n'est  pas 
hors  du  pays." — Vattel,  1.  c.  xix.  s.  216. 

In  another  place,  speaking  of  what  is  contained  under  the  word  domaine  d'une 
nation,  he  says,  "  et  par  ses  possessions,  il  ne  faut  pas  seulement  entendre  ses  terres, 
mais  tous  les  droits  dont  elle  jouit." — L.  ii.  ch.  vii.  s.  80. 

It  is  remarkable  that  Vattel  should  not  furnish  more  authority  on  this  point, 
than  is  to  be  found  in  the  passages  cited  above. 

(z)  Vide  ante,  p.  160.  (a)  Ib.  161. 

(6)  Vide  post,  AMBASSADORS. 

Vattel,  1.  iv.  c.  vii.  s.  92. 


TERRITOKIAL    JURISDICTION.  275 

the  sentence  of  the    Supreme  Court  of  the  United  States,  is  of  great 
weight  in  this  matter.     He  expresses  his  opinion  as  follows  : 

"  In  the  case  of  The  Exchange,(c)  the  grounds  of  the  exemption  of 
public  ships  were  fully  discussed  and  expounded.  *It  was  there 
shown  that  it  was  not  founded  upon  any  notion  that  a  foreign 
Soverign  had  an  absolute  right,  in  virtue  of  his  sovereignty,  to  an  ex- 
emption of  his  property  from  the  local  jurisdiction  of  another  Sovereign, 
when  it  came  within  his  territory  ;  for  that  would  be  to  give  him  sove- 
reign power  beyond  the  limits  of  his  own  empire.  But  it  stands  upon 
principles  of  public  comity  and  convenience,  and  arises  from  the  pre- 
sumed consent  or  license  of  nations,  that  foreign  public  ships  coming 
into  their  ports,  and  demeaning  themselves  according  to  law,  and  in  a 
friendly  manner,  shall  be- exempt  from  the  local  jurisdiction.  But  as 
such  consent  and  license  is  implied  only  from  the  general  usage  of 
nations,  it  may  be  withdrawn  upon  notice  at  any  time,  without  just 
offence ;  and  if,  afterwards,  such  public  ships  come  into  our  ports,  they 
are  amenable  to  our  laws  in  the  same  manner  as  other  vessels.  To  be 
sure,  a  foreign  Sovereign  cannot  be  compelled  to  appear  in  our  courts, 
or  be  made  liable  to  their  judgment,  so  long  as  he  remains  in  his  own 
dominions;  for  the  sovereignty  of  each  is  bounded  by  the  territorial 
limits.  If,  however,  he  comes  personally  within  our  limits,  although  he 
generally  enjoy  personal  immunity,  he  may  become  liable  to  judicial 
process  in  the  same  way,  and  under  the  same  circumstances,  as  the 
public  ships  of  the  nation.  But  there  is  nothing  in  the  Law  of 
Nations  which  forbids  a  foreign  Soveireign,  either  on  account  of  the 
dignity  of  his  station  or  the  nature  of  his  prerogative,  voluntarily 
becoming  a  party  to  a  suit  in  the  tribunals  of  another  country,  or  from 
asserting  their  personal,  or  proprietary,  or  sovereign  rights,  which  may 
be  properly  recognized  and  enforced  by  such  tribunals.  It  is  a  mere 
matter  of  his  own  good  will  and  pleasure  ;  and  if  he  happens  to  hold  a 
private  domain  within  another  territory,  it  may  be  that  he  cannot  obtain 
full  redress  for  any  injury  to  it  except  through  the  instrumentality  of 
its  Courts  of  Justice.  It  may  therefore  be  justly  laid  down  as  a  gene- 
ral proposition,  that  all  persons  and  property  within  the  territorial  juris- 
diction of  a  Sovereign,  are  amenable  to  the  jurisdiction  of  himself  or  his 
^Courts  :  and  that  the  exceptions  to  this  rule  are  such  only  as,  r*qf>cn 
by  common  usage  and  public  policy,  have  been  allowed,  in  L 
order  to  preserve  the  peace  and  harmony  of  nations,  and  to  regulate 
their  intercourse  in  a  manner  best  suited  to  their  dignity  and  rights. 
It  would,  indeed,  be  strange,  if  a  license,  implied  by  law  from  the  gen- 
eral practice  of  nations,  for  the  purposes  of  peace,  should  be  construed 
as  a  license  to  do  wrong  to  the  nation  itself,  and  justify  the  breach  of 
all  those  obligations  which  good  faith  and  friendship,  by  the  same  impli- 
cation, impose  upon  those  who  seek  an  asylum  in  our  ports."(^) 

CCCXLIII.  The  privilege  is  extended,  by  the  reason  of  the  thing,  to 
boats,  tenders,  and  all  appurtenances;  of  a  ship  of  war,  but  it  does  not 

(c)  The  Schooner  Exchange,  7  Cranch's  (American)  Reports,  p.  1151. 

(d)  "  The  Santissima  Trinidad,"  Y  Wheaton's  (American)  Reports,  pp.  352-3-4. 


276  PHILLIMORE     ON     INTERNATIONAL    LAW. 

cover  offences  against  the  territorial  law  committed  upon  shore,  though 
the  commanders  of  vessels  are  entitled  to  be  apprised  of  the  circumstan- 
ces attending  and  causes  justifying  the  arrest  of  any  of  their  crew,  and  to 
secure  to  them,  through  the  agency  of  diplomatic  or  consular  ministers, 
the  administration  of  justice. (e) 

CCCXLIV.  Bynkershoek  maintains  that  the  property  of  a  sovereign 
cannot  be  distinguished  from  that  of  a  private 'individual,  and  the  tribu- 
nals of  his  country  have  laid  down  the  law  to  that  effect ;(/)  and  by  way 
of  confirmation  of  this  doctrine,  he  cites  a  case  in  which  certain  Spanish 
f*37fn  men'°^war  *were  seized  in  1668,  in  the  Port  of  Flushing,  as  a 
J  reimbursement  for  certain  debts  of  the  Spanish  Crown.  It  ap- 
pears that,  on  the  remonstrance  of  the  Spanish  ambassador,  they  were  set 
free,  with  an  intimation  to  the  Spanish  Crown  that,  if  the  debts  of  the 
Dutch  subjects  were  not  discharged,  reprisals*  might  not  improbably  be 
granted  to  them. 

Whether  the  proposition  of  Bynkershoek,  with  respect  to  the  debts  of 
Sovereigns,  be  a  sound  maxim  of  International  Law,  will  be  considered 
in  a  later  part  of  this  Work ;  but  even  assuming  for  the  present  a  pre- 
mise which  will  be  hereafter  disputed,  it  is  manifestly  neither  a  logical 
nor  a  moral  consequence,  that  because  the  private  property  of  the  sove- 
reign may  be  seized,  therefore  the  public  ships  of  the  nation  over  which 
he  rules  may  be  also  apprehended.  The  case  cited  appears  to  be  a  soli- 
tary instance  of  a  national  violation  of  the  general  International  rule,  as 
to  the  immunity  of  foreign  ships  of  war. 

CCCXLV.  In  the  case  of  the  Prinz  Frederick,  brought  into  the  British 
High  Court  of  Admiralty,  the  question  was  raised,  whether  a  foreign 
ship  of  war  was  liable  to  be  sued  for  salvage.  Lord  Stowell  said  :  "  I 
have  considered  the  evidence  respecting  the  Dutch  line  of  battle  ship  be- 
longing to  His  Majesty  the  King  of  the  Netherlands,  arm.ee  en  flute,  and 
carrying  a  valuable  cargo  of  spices,  &c.  from  Batavia  to  the  Texel,  called 
the  Prinz  Frederick,  which  was  brqught  into  Mount's  Bay  by  the  assist- 
ance of  persons  belonging  to  the  British  brig  Howe,  of  the  port  of  Pen- 
zance.  These  persons  have  since  arrested  this  ship  and  cargo,  by  a  war- 
rant issued  from  the  High  Court  of  Admiralty,  in  a  cause  of  salvage,  on 
account  of  essential  services  rendered  to  them  in  a  situation  of  imminent 

danger I  think  that  the  first  application  for  a  recompense,  in  the 

nature  of  salvage,  ought,  in  the  case  of  a  ship  of  war  belonging  to  a  for- 
eign State,  to  have  been  made  to  the  representative  of  that  State  resident 
in  this  country.  In  the  present  case  no  doubt  can  be  entertained,  that 

(e)  Ortolan,  Dipl.  de  la  Mer,  vol.  i.  pp.  291-2. 

(/)  Saepe  cum  injuria  subditorum  ordines  decreverunt,  quod  e  re  publica  esse 
videretur.  Quo  refero  hanc  speciem :  Anno  1668,  privati  quidam  Regis  Hispanici 
creditores  tres  ejus  Regni  naves  bellicas,  quse  portum  Flissingensem  subiverant, 
arresto  detinuerant,  ut  inde  ipsis  satisfieret,  Rege  Hispan.  ad  certum  diem  per 
epistolam  in  jug  vocato  ad  Judices  Flissingenses,  sed  ad  legati  Hispanici  expostu- 
lationes  Ordines  Generales  12  Dec.  1668,  decreverunt,  Zelandise  Ordines  curare 
vellent,  naves  illae  continuo  dimitterentur  liberse,  admoneretur  tamen  per  litteras 
Hispaniae  Regina,  ipsa  curare  vellet,  ut  illis  creditoribus,  in  causa,  justissima, 
satisfieret,  ne  repressalias,  quas  imploraverant,  largiri  tenerentur." — Bynkershoek, 
De  Foro  Legatorum,  c.  iv.  A 


TERRITORIAL    JURISDICTION.  277 

just  attention  would  have  been  paid  to  the  application,  and  due  care 


taken,  after  ^proper  information  obtained,  to  have  answered  the 


[*371] 


claim  in  such  form  or  other,  as  substantial  justice  might  appear 
to  require  ;  for  it  is  not  reasonable  to  suppose,  that  private  individuals 
in  this  country  should  go  unrewarded,  for  services  performed  to  the  ships 
of  foreign  governments,  when  they  would  have  been  liberally  rewarded 
for  similar  services  performed  for  such  ships  belonging  to  their  own. 
At  the  same  time,  the  valuation  of  those  services  is  proper  to  be  obtained, 
at  least  in  the  first  instance,  from  those  governments  themselves ;  and  it  is 
not  till  after  their  denial  of  justice,  that  recourse  should  be  had  else- 
where. Instead  of  this,  the  application  is  made  direct  to  the  captain  of 
this  ship,  who  treats  it  with  undue  disregard  and  defiance.  I  say  undue, 
because  at  any  rate  some  salvage  was  due ;  and  if  he  personally  was  not 
liable,  he  ought,  at  least,  to  have  informed  them  where  the  demand  was 
to  be  made.  On  his  refusal,  a  warrant  of  detainer  is  sued  out  of  the 
Court  of  Admiralty,  and  this  begets  a  delicate  question  of  jurisdiction  in 
International  Law,  which  the  Court  was  disposed  to  treat  with  all  neces- 
sary caution.  The  vessel  is  said  to  have  been  detained,  under  the  autho- 
rity of  this  warrant  for  six  months. 

"  Why  she  was  not  released  upon  bail,  on  an  application  to  the  Court, 
I  know  not ;  the  Court  would  certainly  have  decreed  it,  if  any  such  ap- 
plication had  been  made,  but  without  prejudice  to  the  depending  question 
of  jurisdiction."  (g} 

The  question  was  eventually  settled  by  arrangement ;  but  during  the 
course  of  the  argument,  the  Queen's  Advocate  of  that  day  insisted  for- 
cibly upon  the  general  principle  of  International  Law,  which  exempted 
all  foreign  ships  of  war  from  all  private  claims.  (A) 

CCCXLVI.  The  privilege  or  right  does  not  extend  in  time  of  war  to 
prize  ships  or  prize  goods  captured  by  vessels  *fitted  out  in  a 
neutral  port  in  violation  of  its  neutrality  ;(i)  and  it  has  been 
asserted  on  high  authority,  that,  according  to  the  law  of  the  United 
States  of  North  America,  a  writ  of  habeas  corpus  may  be  lawfully 
awarded  to  bring  up  a  subject  illegally  detained  on  board  a  foreign  ship 
in  American  waters. (&)  The  same  doctrine  would  probably  be  held  by 
the  Courts  of  Great  Britain. 

CCCXLVII.  It  is  important  to  observe  that,  if  any  question  arise  as 
to  the  nationality  of  a  ship  of  war,  the  commission  is  held  to  supply  ade- 
quate proof.  In  a  part  of  the  judgment  already  cited,  Dr.  Story  ob- 
serves :  "  In  general,  the  commission  of  a  public  ship,  signed  by  the 

(ff)  "The  Prinz  Frederick,"  2  Dodson's  Adm.  Rep.  pp.  482.  484-5. 
fA)  Ib.  p.  457,  &c. 

m  "The  Exchange,"  7  Cranch's  Reports,  116. 
"  The  Arrogante  Barcelones,"  7  Wheatoii's  Reports,  496. 
"  The  Monte  Allegro,"  ib.  520. 
Vattel,  1.  i.  c.  xix.  s.  216. 

(fc)  Opinions  of  the  American  Attorneys-General,  vol.  i.  pp.  25.  55.  57. 
Kent,  Comment.  158,  note. 

See  De  M.  et  De  C.  Tr.,  Index,  xxxvi.,  tit.  Nationalite,  for  catalogue  of  Treaties 
on  this  subject. 
Ortolan,  i.  302,  &c. 


278  PHILLIMORE     ON    INTERNATIONAL    LAW. 

proper  authorities  of  the  nation  to  which  she  belongs,  is  complete  proof 
of  her  national  character.  A  bill  of  sale  is  not  necessary  to  be  produced. 
Nor  will  the  courts  of  a  foreign  country  inquire  into  the  means  by  which 
the  title  to  the  property  has  been  acquired.  It  would  be  to  exert  the 
right  of  examining  into  the  validity  of  the  acts  of  the  foreign  sovereign, 
and  to  sit  in  judgment  upon  them  in  cases  where  he  has  not  conceded 
the  jurisdiction,  and  where  it  would  be  inconsistent  with  his  own  supre- 
macy. The  commission,  therefore,  of  a  public  ship,  when  duly  authen- 
ticated, so  far  at  least  as  foreign  courts  are  concerned,  imports  absolute 
verity,  and  the  title  is  not  examinable.  The  property  must  be  taken  to 
be  duly  acquired,  and  cannot  be  controverted.  This  has  been  the  settled 
practice  between  nations ;  and  it  is  a  rule  founded  in  public  convenience 
r*37*n  an<^  P°^cv>  an(^  cann°t  be  broken  in  *upon,  without  endangering 
•J  the  peace  and  repose,  as  well  of  neutral  as  of  belligerent  sove- 
reigns. The  commission  in  the  present  case  is  not  expressed  in  the 
most  unequivocal  terms ;  but  its  fair  purport  and  interpretation  must  be 
deemed  to  apply  to  a  public  ship  of  the  Government.  If  we  add  to  this 
the  corroborative  testimony  of  our  own,  and  the  British  Consul  at  Buenos 
Ayres,  as  well  as  that  of  private  citizens,  to  the  notoriety  of  her  claim  of 
a  public  character;  and  her  admission  into  our  own  ports  as  a  public 
ship,  with  the  immunities  and  privileges  belonging  to  such  a  ship,  with 
the  express  approbation  of  our  own  Government,  it  does  not  seem  too 
much  to  assert,  whatever  may  be  the  private  suspicion  of  a  lurking  Ame- 
rican interest,  that  she  must  be  judicially  held  to  be  a  public  ship  of  the 
country  whose  commission  she  bears."(£) 

CCCXLVIII.  Secondly,  with  respect  to  merchant  or  private  vessels, 
the  general  rule  of  Law  is,  that,  except  under  the  provisions  of  an  ex- 
press stipulation,  such  vessels  have  no  exemption  from  the  territorial 
jurisdiction  of  the  harbour  or  port,  or,  so  to  speak,  territorial  waters 
(mer  littorale),  in  which  they  lie.(m) 

The  doctrine  is  clearly  expounded  by  the  American  Chief  Justice 
Marshall,  as  follows  : — 

"  When  private  individuals  of  one  nation  spread  themselves  through 
another,  as  business  or  caprice  may  direct,  mingling  indiscriminately 
with  the  inhabitants  of  that  other,  or  when  merchant  vessels  enter  for 
the  purposes  of  trade,  it  would  be  obviously  inconvenient  and  dangerous 
to  society,  and  would  subject  the  laws  to  continued  infraction,  and  the 
government  to  degradation,  if  such  individuals  or  merchants  did  not  owe 
temporary  and  local  allegiance,' and  were  not  amenable  to  the  jurisdic- 
1-5(5074-1  tion  of  the  country.  *Nor  can  the  foreign  sovereign  have  any 
-"  motive  for  wishing  such  exemption.  His  subjects  thus  passing 
into  foreign  countries  are  not  employed  by  him,  nor  are  they  engaged  in 
national  pursuits.  Consequently,  there  are  powerful  motives  for  not 
exempting  persons  of  this  description  from  the  jurisdiction  of  the  coun- 
try in  which  they  are  found,  and  no  one  motive  for  requiring  it.  The 

(1)  "  The  Santissima  Trinidad,"  7  Wheaton's  (American)  Reports,  pp.  335-6-7. 

(m)  Wheaton's  Ele"m.  t.  i.  pp.  119-20. 

Wheaton,  Hist.,  p.  739,  Letter  of  Mr.  Webster  to  Lord  Ashburton. 


TERRITORIAL    JURISDICTION.  279 

implied  license,  therefore,  under  which  they  enter,  can   never  be  con- 
strued to  grant  such  exemption. "(n) 

CCCXLIX.  The  jurisprudence  of  France  upon  this  subject  requires 
special  notice. (o) 

That  jurisprudence  recognises  a  distinction  between — 1.  On  the  one 
hand,  acts  relating  solely  to  the  internal  discipline  of  the  ship,  or  even 
to  offences  committed  by  one  of  the  crew  against  another,  but  which  does 
not  affect  generally  the  peace  and  good  order  of  the  port. 

2.  On  the  other  hand,  offences  and  crimes  (crimes  ou  delits)  com- 
mitted by  a  stranger  against  one  of  the  crew,  or  by  one  of  the  crew 
against  the  other,  in  a  manner  to  disturb  the  peace  and  good  order  of  the 
port. 

Facts  belonging  to  this  latter  class,  as  well  as  civil  contracts  between 
the  crew  and  persons  who  do  not  belong  to  the  crew,  are  clearly  cogniza- 
ble by  the  territorial  tribunals. 

The  following  instances  illustrate  the  practical  application  of  these 
principles  of  jurisprudence. 

In  1806,  The  Newton,  an  American  merchantman,  being  in  the  port 
of  Antwerp,  a  quarrel  arose  between  two  of  the  crew,  who  were  in  a  boat 
belonging  to  the  vessel,  and  cognizance  of  the  dispute  was  claimed  by  the 
local  authorities  and  by  the  American  Consul.  At  the  same  time  a 
quarrel  arose  between  certain  of  the  crew  of  The  Sally,  an  American 
*merchantman  lying  in  the  port  of  Marseilles.  In  this  case  a  ..^07^-1 
severe  wound  had  been  inflicted  by  an  officer  of  The  Sally  upon  L 
one  of  the  men  for  disobedience  to  orders.  In  this  case  a  similar  con- 
flict as  to  jurisdiction  took  place.  The  superior  tribunal  (le  Conseil 
d'elafy  decided  in  both  cases  in  favour  of  the  jurisdiction  of  the  Ameri- 
can Consul.(_p) 

In  1837,  the  Swedish  vessel  Forsattning  was  anchored  in  the  Loire, 
in  the  Paimboeuf  roads,  and  on  board  this  vessel  the  crime  of  poisoning 
was  committed.  The  Court  at  Rennes  had  some  doubt  as  to  the  compe- 
tence of  the  American  authority  on  these  three  grounds  : — (1.)  that  the 
vessel  was  a  merchantman  j  (2.)  that  she  was  anchored  in  French  waters  ; 
(3.)  that  there  was  no  reciprocity  between  France  and  Sweden  on  the 
subject;  and  consulted  the  Government,  which  sent  an  answer,  drawn  up 
under  the  joint  authority  of  the  garde  des  sceaux  and  the  ministre  des 
affaires  etrangeres,  to  the  effect  that  the  criminal  was  to  be  delivered  up 
to  the  proper  authority  on  board  of  his  own  ship.fa) 

These  examples  support  the  former  of  the  two  propositions  of  French 
jurisprudence  stated  above.  The  latter,  which  sustains  the  territorial 
jurisdiction,  is  illustrated  by  a  case  which  happened  in  1845. 

In  the  winter  of  that  year  the  Tribunal  Correctionnel  at  Marseilles 

(n)  The  Schooner  Exchange  v.  M'Fadden  and  others,  7  Cranch's  (American) 
Rep.  p.  144. 

(o)  Masse',  Le  Droit  Commerc.  t.  i.  p.  61 — 65. 

Ortolan,  Dipl.  de  la  Mer,  t.  i.  pp.  292—310. 

(p)  Ortolan,  ubi  supra,  and  Append.,  annexe  H,  for  judgment  at  length :  and 
see  Appendix  to  this  Work. 

(q)  Revue  de  Legisl.  et  de  Jurisprud.  fevrier  1843,  tome  xvii.  p.  143. 

Masse",  Le  Droit  Comm.  t.  ii.  p.  63. 


280  PHILLIMOEE     ON     INTERNATIONAL     LAW. 

declared  itself  competent  to  punish  the  captain  of  an  English  merchant- 
man for  an  attack  upon  the  master  of  a  French  vessel  in  the  port.(r)  In 
harmony  with  these  principles  the  French  Law,  though  it  gives  power  to 
French  Consuls  to  adjudicate  on  disputes  arising  on  board  French  mer- 
chantmen when  lying  in  foreign  ports,  and  when  at  anchor  in  a  foreign 
r*37fiT  roadstead}  gives  this  power  over  them  to  French  *men-of-war,  if 
-I  there  be  any  present,  and  if  not  to  French  consuls ;  but  it  is  with 
an  express  reservation  of  the  rights  of  the  local  authorities.  The  power 
given  to  their  own  officers  they  consider  as  belonging  to  the  category  of 
droits  de  police,  incident  to  every  State  over  its  merchant  vessels,  the 
power  of  the  local  authority  as  belonging  to  the  distinct  category  of  droits 
de  jurisdiction.^) 

CCCL.  These  droits  de  police  et  de  jurisdiction  over  merchantmen  in 
foreign  parts  have  been  the  subject  of  various  Treaties,  and  though  dif- 
fering in  various  respects  from  each  other,  make  on  the  whole  an  ap- 
proach to  a  pretty  general  adoption  of  the  principles  laid  down  in  the 
preceding  paragraphs. 

M.  Ortolan^)  considers  the  eleventh  article  of  the  Treaty  between 
France  and  the  United  States  of  North  America  (November  14,  1788), 
and  the  twenty-sixth  article  of  the  Treaty  between  Denmark  and  the 
Republic  of  Genoa  (July  30,  1789),  as  containing  maxims  of  Inter- 
national Law  on  this  subject  worthy  of  general  adoption. (M) 

M.  Masse(w),  no  mean  authority,  thinks  with  M.  Ortolan,  that  the 
distinction  between  the  two  kinds  of  offences  is  rightly  taken  and  ought 
to  be  generally  observed.  He  admits,  however,  that  it  is  not  generally 
in  force,  but  that  the  simpler  distinction  between  men-of-war  and  mer- 
chantmen obtains;  offences  on  board  the  former  being  left  to  the  juris- 
diction of  the  ship,  on  board  the  latter  to  the  local  or  territorial  autho- 
rity, (cc) 

CCCLI.  Great  Britain  has  made  arrangements  with  certain  foreign 
r*Q77i  Powers  f°r  ^e  recovery  of  seamen  who  desert  *from  the  ships 
J  of  such  powers  in  British  portd,  and  for  the  recovery  of  seamen 
deserting  from  British  ships  when  in  the  ports  of  such  powers ;  and  the 
hands  of  the  British  Executive  have  been  strengthened  by  an  Act  of  Par- 
liament for  such  purpose ;  and  it  is  competent  to  the  Queen  to  declare  by 
Order  in  Council  that  deserters  from  foreign  ships  may  be  apprehended 
and  given  up.  Upon  the  publication  of  this  order,  justices  of  the  peace 
must  aid  in  the  recovery,  of  such  deserters,  and  a  penalty  is  imposed  upon 
persons  who  harbour  them.(y) 

CCCLII.  In  one  event  the  difference  between  the  mercantile  and 
military  marine  does  not  affect  the  question  of  jurisdiction  ;  that  is,  when 
the  offence  has  been  committed  on  board  a  vessel  navigating  the  open 
sea.  In  this  case  all  authorities  combine  with  the  reason  of  the  thing, 

(r)  Ortolan,  ib.  p.  297.  («)  Ortolan,  t.  i.  p.  300. 

(t)  Ib.  pp.  301-2.  (M)  See  Appendix  to  this  Work  ;  et  post,  CONSULS. 

(v)  Le  Droit  Gomm.  t.  ii.  pp.  63-4.  (z)  Kliiber,  s.  53. 

Wheaton,  Elem.  t.  i.  p.  126. 

Casaregis  Disc.  136,  n.  9. 

(y)  15  Victoria,  c.  26,  passed  June  17,  1852. 


EIGHT     OP    JURISDICTION.  281 

in  declaring  that  the  territory  of  the  country  to  which  the  vessel  belongs 
is  to  be  considered  as  the  locality  of  the  offence,  and  in  pronouncing  that 
the  offender  must  be  tried  before  the  tribunals  of  his  country,  (z)  It  mat- 
ters not  whether  the  injured  person  or  the  offender  belong  to  a  country 
other  than  that  of  the  vessel.  The  rule  is  applicable  to  all  on  board. 

The  principle  of  this  rule  has  been  carefully  preserved  in  the  conven- 
tions between  France  and  England,  which  have  made  the  Slave  Trade 
illegal,  so  far  as  relates  to  their  respective  subjects. (a) 

The  English  law  provided  originally  for  the  trial  of  such  offences  by 
the  general  jurisdiction  of  the  High  Court  of  Admiralty  j  but  during  and 
subsequent  to  the  reign  of  *Henry  VIII. ,  various  statutes  have 
been  passed,  appointing  and  regulating  the  tribunals  which  have 
cognizance  of  this  crime,  the  last  of  which  was  passed  in  the  reign  of  the 
late  King  William  IV.(Z») 


"CHAPTER  XX.  [*379] 

RIGHT   OF  JURISDICTION — PIRATES. 

CCCLIII.  To  whatever  country  the  Pirate  may  have  originally 
belonged,  he  is  justiciable  everywhere  ;(c)  his  detestable  occupation  has 
made  him  hostis  humani  generis,  and  he  cannot  upon  any  ground  claim 
immunity  from  the  tribunal  of  his  captor.  "  With  professed  Pirates" 
(Lord  S  to  well  says)  there  is  no  state  of  peace.  They  are  the  enemies  of 
every  country,  and  at  all  times ;  and  therefore  are  universally  subject 
to  the  extreme  rights  of  war."(cZ)  The  Pirate  has,  in  fact,  no  national 
character.  No  captures  made  by  them  affect  ownership,  the  rule  of  law 
being  that  "  a  piratis  capta  dominium  non  mutant."  Piracy  is  an  assault 
upon  vessels  navigated  on  the  high  seas,  committed  animo  furand-i, 
whether  the  robbery  or  forcible  depredation  be  effected  or  not,  and 

(z)  Vattel,  1.  i.  c.  xix.  s.  216. 
Faelix,  s.  506. 
Ortolan,  t.  i.  p.  282. 
Wheaton,  Elem.  t.  i.  p.  134. 
Kent,  Comm.  i. 

See  too,  as  affecting  merchant  vessels,  The  French  Ordonnance,  29th  October, 
1833.  Art.  15,  cited  by  Ortolan,  i.  283,  n. 

(a)  Art.  7.  of  the  Convention  of  30th  November,  1831. 

(b)  4  &  5  William  IV.  c.  36,  s.  22,  the  Central  Criminal  Court  Act. 
Russell  on  Crimes,  vol.  i.  pp.  104.  552-5. 

(c)  Vide  ante. 

Grotius,  1.  iii.  c.  iii.  1,  2,  3 ;  1.  iii.  c.  ix.  16;  1.  ii.  c.  xviii.  1,  2,  3 ;  1.  ii.  c.  xxi.  5 ; 
1.  ii.  c.  IT.  19 — 29;  1.  ii.  c.  xiii.  15;  1.  ii.  c.  xvii.  20. 

Bynkershoek,  Quaest.  J.  P.,  De  Piratica,  &c.,  1.  i.  c.  xvii.  xv.  in  fine. 

Loccen,  De  Jure-Marit.  1.  ii.  c.  iii. 

Ortolan,  t.  i.  c.  xii.  p.  249.     Des  Pirates. 

Dig.  L.  16.  118,  xlix.  15.  19.  2.,  15.  21.  2. 

Kent's  Comm.  i.  186. 

Cicero,  De  Off.  1.  iii.  29,  in  fine  :  "  Nam  Pirata  non  est  in  perduellionum  numero 
definitus,  sed  communis  hostes  omnium,  cum  hoc  nee  fides  debet,  nee  jusjurandum 
esse  commune." 

(d)  «  The  Le  Louis,"  2  Dodson's  Adm.  Rep.  pp.  244.  246. 

AUGUST,  1854.— 19 


282  PHILLIMORE    ON    INTERNATIONAL    LAW. 

whether  or  not  it  he  accompanied  by  murder  or  personal  injury.  If  a 
r*Q«m  s^ip  belonging  to  an  independent  nation,  and  *not  a  professed 
-1  buccanier,  practises  such  conduct  on  the  high  seas,  she  is  liable 
to  the  pains  and  penalties  of  Piracy.  The  law  is  very  clearly  stated  by 
Sir  L.  Jenkins  in  a  letter  of  advice  to  Mr.  Secretary  Williamson  (1675). 

«  His  Majesty  had,  when  I  came  from  home,  a  controversy  with  France, 
in  a  case  not  much  unlike  yours.  A  French  merchantman  had  gone  out 
from  Kochel  to  the  West  Indies,  and  had  committed  many  robberies  and 
great  cruelties  upon  those  of  his  crew  in  the  voyage.  He,  in  his  return, 
put  in  at  Kingsale  for  refreshment ;  his  company  accuse  him  ;  he  flies, 
his  ship  and  goods  are  confiscated  as  the  goods  of  Pirates.  This  sentence 
was  opposed  by  the  French  Ambassador,  M.  Colbert,  and  the  cause 
desired  to  be  remanded  to  the  natural  judge  (as  was  pretended,)  in 
France.  This  produced  several  memorials  and  several  answers,  in  which 
my  little  service  was  commanded ;  and  the  King  and  his  Council  were 
pleased  to  adjudge,  he  was  sufficiently  founded  in  point  of  jurisdiction, 
to  confiscate  that  ship  and  goods,  and  to  try  capitally  the  person  himself, 
had  he  been  in  hold;  the  matter  of  Renvoy  being  a  thing  quite  disused 
among  princes  ;  and  as  every  man,  by  the  usage  of  our  European  nations, 
is  justiciable  in  the  place  where  the  crime  is  committed,  so  are  Pirates, 
being  reputed  out  of  the  protection  of  all  laws  and  privileges,  and  to  be 
tried  in  what  ports  soever  they  are  taken. "(c) 

Dr.  Story,  in  his  judgment  in  the  United  States  v.  Smith,  says: 
"  There  is  scarcely  a  writer  on  the  Law  of  Nations  who  does  not  allude 
to  Piracy  as  a  crime  of  a  settled  and  determined  nature ;  and,  whatever 
may  be  the  diversity  of  definitions  in  other  respects,  all  writers  concur 
in  holding  that  robbery  or  forcible  depredations  upon  the  sea,  animo 
furandi,  is  Piracy. "(d} 

*The  same  very  learned  and  able  judge  guards,  however,  care- 
fully  against  the  notion,  that  a  mere  excess  of  power  by  a  lawfully 
commissioned  ship  would  place  her  in  the  category  of  a  Pirate.  As  to  the 
tribunal,  the  mode  of  trial,  and  the  punishment,  it  is  of  course  competent 
to  each  country  to  make  its  own  regulations.  By  the  laws  of  most  States 
Piracy  is  punishable  by  death,  (e) 

CCCLIV.  It  has  been  obs_erved  in  a  former  Chapter  that  the  munici- 
pal laws  of  a  State,  or  of  a  number  of  States,  cannot  constitute  that 
offence  to  be  Piracy,  which  is  not  so  characterized  by  International 
Law ;  and  memorable  instances  of  the  scrupulous  severity  with  which 
this  doctrine  is  upheld  by  Great  Britain  were  adduced  in  the  cases  of 
the  Le  Louis,  and  of  the  Queen  v.  Da  Serva  and  others.  (/) 

(c)  Life  of  Jenkins,  vol.  ii.  p.  714. 

(d)  5  Wheaton's  (American)  Reports,  p.  163 :  the  note  (a)  to  this  page  contains 
a  most  learned  and  careful  accumulation  of  all  the  authorities  on  the  subject  of 
Piracy. 

(e)  See  generally,  1  Kent  Comm.  p.  187,  for  N.  American  U.  S.  Law. 
1  Russell  on  Crimes,  ch.  viii.  p.  94.  for  English  Law. 

Ortolan,  1.  ii.  c.  xii.  for  French  Law;  and  Valin,  ii.  p.  236:  "Quant  a  la  peine 
due  aux  pirates  et  fourbans,  elle  est  du  dernier  supplice  suivant  V opinion  com- 
mune" &c. 

(/)  Vide  ante. 


RIGHT    OP    JURISDICTION.  283 

Piracy  has  indeed  become  infrequent  in  its  former  haunts,  and,  both 
in  the  Mediterranean  and  the  West  Indian  Seas,  appears  to  be  nearly 
extinct;  but  in  the  waters  of  China  and  the  Eastern  Archipelago(^)  it 
is  continually  carried  on ;  and  even  if  it  were  not,  the  law  relating  to  it 
would  form  an  important  chapter  in  International  Jurisprudence,  as  will 
be  seen  in  the  observations  which  follow  upon  the  different  kinds  of 
privateers. 

CCCLV.  That  law  has  been  laid  down  with  great  learning  and  care 
by  the  Judges  of  the  British  Admiralty  Courts,  which  are,  it  will  be 
remembered,  also  Courts  of  International  Law. 

In  a  charge  given  at  a  sessions  of  Admiralty  within  the  Cinque  Ports, 
Sept.  2,  1668,  Sir  Leoline  Jenkins  expressed  himself  as  follows  : — 

*"  There  are  some  sorts  of  felonies  and  offences,  which  cannot 
be  committed  any  where  else  but  upon  the  sea,  within  the  juris- 
diction  of  the  Admiralty.     These  I  shall  insist  upon  a  little  more  parti- 
cularly, and  the  chiefest  in  this  kind  is  Piracy. 

"  You  are  therefore  to  inquire  of  all  Pirates  and  sea-rovers ;  they  are 
in  the  eye  of  the  law  hastes  humani  generis  ;  enemies  not  of  one  nation 
or  of  one  sort  of  people  only,  but  of  all  mankind.  They  are  outlawed, 
as  I  may  say,  by  the  laws  of  all  nations,  that  is,  out  of  the  protection  of 
all  princes  and  of  all  laws  whatsoever.  Everybody  is  commissioned, 
and  is  to  be  armed  against  them,  as  against  rebels  and,  traitors,  to  subdue 
and  to  root  them  out. 

"  That  which  is  called  robbing  upon  the  highway,  the  same  being  done 
upon  the  water  is  called  Piracy.  Now  robbery,  as  'tis  distinguished 
from  thieving  or  larceny,  implies  not  only  the  actual  taking  away  of  my 
goods,  while  I  am,  as  we  say,  in  peace,  but  also  the  putting  me  in  fear, 
by  taking  them  away  by  force  and  arms  out  of  my  hands,  or  in  my 
sight  and  presence ;  when  this  is  done  upon  the  sea,  without  a  lawful 
commission  of  war  or  reprisals,  it  is  downright  Piracy. 

"  And  such  was  the  generosity  of  our  ancient  English,  such  the 
abhorrence  of  our  laws  against  Pirates  and  sea-rovers,  that  if  any  of 
the  King's  subjects  robbed  or  murdered  a  foreigner  upon  our  seas  or 
within  our  ports,  though  the  foreigner  happened  to  be  of  a  nation  in 
hostility  against  the  King,  yet  if  he  had  the  King's  passport,  or  the  Lord 
Admiral's,  the  offender  was  punished,  not  as  a  felon  only,  but  this  crime 
was  made  high  treason,  in  that  great  Prince  Henry  the  Fifth's  time ; 
and  not  only  himself,  but  all  his  accomplices,  were  to  suffer  as  traitors 
against  the  crown  and  dignity  of  the  King."(A) 

*And  in  a  subsequent  charge  given  at  the  Admiralty  Sessions  r*ooq-i 
held  at  the  Old  Bailey,  Sir  Leoline  Jenkins  said : — 

"  The  next  sort  of  offence  pointed  at  in  the  statute,  are  robberies  j 
and  a  robbery,  when  'tis  committed  upon  the  sea,  is  what  we  call  Piracy. 
A  robbery,  when 'tis  committed  upon  the  land,  does  imply  three  things  : 
— 1.  That  there  be  a  violent  assault.  2.  That  a  man's  goods  be  actually 

(g)  "  The  Serhassan,"  2  W.  Robinson's  Adm.  Reports,  pp.  354 — 358. 
(A)  Life  of  Sir  L.  Jenkins,  vol.  i.  p.  Ixxxvi. 


284  PHILLIMORE    ON    INTERNATIONAL    LAW. 

taken  from  his  person,  or  possession.     3.  That  he  who  is  despoiled  be 
put  in  fear  thereby. 

"  When  this  is  done  upon  the  sea,  when  one  or  more  persons  enter 
on  board  a  ship  with  force  and  armes,  and  those  in  the  ship  have  their 
ship  carried  away  by  violence,  or  their  goods  taken  away  out  of  their 
possession,  and  are  put  in  a  fright  by  the  assault,  this  is  Piracy ;(%  )  and 
he  that  does  so  is  a  Pirate,  or  a  robber,  within  the  statute. 

"  Nor  does  it  differ  the  case,  though  the  party  so  assaulted  and 
despoiled  should  be  a  foreigner,  not  born  within  the  king's  allegiance  ;  if 
he  be  de  amicitid  Regis,  he  is  eo  nomine  under  the  king's  protection ; 
and  to  rob  such  a  one  upon  the  sea  is  Piracy. 

"  Nor  will  it  be  any  defence  to  a  man,  who  takes  away  by  force  ano- 
ther's ship  or  goods  at  sea,  that  he  hath  a  commission  of  war  from  some 
foreign  prince,  unless  the  person  he  takes  from  be  a  lawful  enemy  to  that 
prince.  ;Tis  a  crime  in  an  Englishman  to  take  a  commission  from  any 
foreign  prince,  that  is  in  open  war  with  another  prince  or  State.  'Tis 
felony  in  some  cases,  'tis  always  punishable  as  a  great  misprision,  since 
His  Majesty  hath  forbid  it  by  various  proclamations.  Yet  if  a  man 
do  take  such  a  commission,  or  serve  under  it,  then  'tis  no  robbery 
to  assault,  subdue,  despoil  his  lawful  enemy,  nor  yet  to  seize  and 
carry  away  a  friend  supposed  to  be  an  enemy  provided  he  do  bring  that 
r*3&n  friend,  without  pillaging  or  hurting  him,  or  *taking  any  compo- 
-1  sition  from  him,  to  judgment,  in  some  port  of  that  prince,  whose 
commission  he  bears.  'Tis  not  only  Piracy,  when  a  man  robs  without 
any  commission  at  all,  but  'tis  Piracy,  when  a  man,  having  a  commis- 
sion, despoils  and  robs  those  which  his  commission  warrants  him  not  to 
fight  or  meddle  with ;  such  I  mean  as  are  de  Ligeantid  vel  Amicitid 
Domini  nostri  Regis,  and  also  de  Ligeantid  vel  Amicitid  of  that  prince  or 
State  that  hath  given  him  his  commission. 

"  You  are  therefore  to  inquire,  if  any  persons  have  committed  robbery 
upon  the  sea,  entering  with  force  and  arms  into  any  ship  or  vessel  belong- 
ing to  the  King's  subjects,  or  to  the  subjects  of  any  prince  or  State  in 
amity  with  the  King,  and  not  in  war  with  any  prince  that  hath  given  a 
commission  to  such  aggressor.  Or  if,  after  such  entering  and  boarding 
the  ship  or  vessel,  they  have  feloniously  carried  and  sailed  away  with 
the  ship  itself,  or  taken  away  any  merchandises,  or  goods,  tackle,  appa- 
rel, or  furniture  out  of  it,  thereby  putting  the  master  of  such  ship  and 
his  company  in  fear. 

"  You  are  carefully  to  present  such  persons,  their  names,  surnames, 
and  additions,  their  places  of  abode  and  occupation,  the  ships  and  the 
goods  they  have  spoil'd  and  robb'd ;  the  persons  they  have  so  assaulted 
and  despoiled;  the  kinds,  quantities,  values  of  the  goods  they  have  taken 
away ;  the  names  and  burdens  of  the  ships  or  vessels  they  committed 
the  Piracy  in;  and  where  those  vessels,  the  goods,  and  the  Pirates  them- 
selves now  are;  together  with  the  time,  place,  manner  and  circumstances, 
as  distinctly  as  you  can. 

(i)  Farinac,  torn,  vii.,  Qu.  166.  de  Furtis  n.  7.  Vid  Novell.  134,  cap.  ult.  Farin. 
ib.  n.  29.,  de  Pocna,  ib.  c.  167.  part  i.  n.  32.,  3  Jac.  c.  iv. 


RIGHT    OF    JURISDICTION.  285 

"  You  are  to  inquire  of  all  such  as  Lave  been  accessaries  to  such  rob- 
bers, in  aiding,  abetting,  comforting,  or  receiving  them. (A;)  For  there 
may  be  accessaries  in  this  as  well  as  in  other  felonies,  and  they  are  pun- 
ishable here ;  Piracy  being  now  made  felony  by  the  Statute  Law,  and 
when  *any  offence  is  felony,  either  at  the  Common  Law  or  by 
Statute,  all  accessaries,  both  before  and  after,  are  incidentally 
included."(Z) 

In  1696  Sir  Charles  Hedges,  Judge  of  the  High  Court  of  Admiralty, 
during  the  course  of  his  charge  to  the  Grand  Jury,  made  the  following 
observations  : — 

"  The  King  of  England  hath  not  only  an  empire  and  sovereignty  over 
the  British  Seas,  but  also  an  undoubted  jurisdiction  and  power,  in  con- 
currency with  other  princes  and  states,  for  the  punishment  of  all  pira- 
cies and  robberies  at  sea,  in  the  most  remote  parts  of  the  world ;  so  that 
if  any  person  whatsoever,  native  or  foreigner,  Christian  or  Infidel,  Turk 
or  Pagan,  with  whose  country  we  have  no  war,  with  whom  we  hold  trade 
and  correspondence,  and  are  in  amity,  shall  be  robbed  or  spoiled  in  the 
Narrow  Seas;  the  Mediterranean,  Atlantic,  Southern,  or  any  other  seas, 
or  the  branches  thereof,  either  on  this  or  the  other  side  of  the  line,  it  is 
Piracy  within  the  limits  of  your  inquiry,  and  the  cognizance  of  this 

Court. (m) Since  foreigners  look  upon  the  decrees  of  our  courts  of 

justice  as  the  sense  and  judgment  of  the  whole  nation,  our  enemies  will 
be  glad  to  find  an  occasion  to  say,  that  such  miscreants  as  are  out  of  the 
protection  of  all  laws  and  civil  government,  are  abetted  by  those  who 
contend  for  the  sovereignty  of  the  seas.  The  barbarous  nations  will 
reproach  us  as  being  a  harbour,  receptacle,  and  a  nest  of  pirates ;  and 
our  friends  will  wonder  to  hear  that  the  enemies  of  merchants  and  of 
mankind  should  find  a  sanctuary  in  this  ancient  place  of  trade.  Nay, 
we  ourselves,  cannot  but  confess  that  all  kingdoms  and  countries 
who  have  suffered  by  English  pirates,  may  for  want  of  redress  in  the 
ordinary  course,  have  the  pretence  of  justice,  and  the  colour  of  the  laws 
of  nations  to  justify  the  making  of  reprisals  upon  our  *mer- 
chants,  wheresoever  they  shall  meet  them,  upon  the  seas. (ft) 

It  should  be  considered  likewise,  on  the  other  side,  that  he 

who  brings  a  notorious  pirate,  or  common  malefactor,  to  justice,  contri- 
butes to  the  safety  and  preservation  of  the  lives  of  many,  both  bad  and 
good  ;  of  the  good,  by  means  of  the  assurance  of  protection ;  and  of 
the  bad  too,  by  the  terror  of  justice.  It  was  upon  this  consideration 
that  the  Roman  Emperors  in  their  edicts  made  this  piece  of  service  for 
the  public  good  as  meritorious  as  any  act  of  piety,  or  religious  wor- 
ship. 

ft  Our  own  laws  demonstrate  how  much  our  legislators,  and  particu- 
larly how  highly  that  great  prince  King  Henry  the  Fifth,  and  his  par- 

(&)  Jac.  Gothofred.  de  famosis  Latronibus  investigandis,  p.  23. 

(1)  Life  of  Sir  L.  Jenkins,  vol.  i.  p.  xciv. 

(m)  "Trial  of  Joseph  Dawson  and  others,"  HowelPs  State  Trials  (A.  D.  1696), 
vol.  xiii.  p.  455. 

(n)  "  Trial  of  Joseph  Dawson  and  others,"  Howell's  State  Trials  (A.  D.  1696), 
vol.  xiii.  p.  456. 


286  PHILLIMORE    ON     INTERNATIONAL    LAW. 

liament,  thought  this  nation  concerned  in  providing  for  the  security  of 
traders,  and  scouring  the  seas  of  rovers  and  freebooters.  Certainly 
there  never  was  an  age  wherein  our  ancestors  were  not  extraordinarily 
zealous  in  that  affair,  looking  upon  it,  as  it  is,  and  ever  will  be,  the  chief 
support  of  navigation,  trade,  wealth,  strength,  reputation,  and  glory  of 
this  nation."(o) 

CCCLVI.  In  1718,  the  Judge  of  the  Vice-Admiralty  Court  Charles 
Town,  in  South  Carolina,  laid  down  the  law  as  to  Piracy  as  follows : — 

"  Now(  p)  as  this  is  an  offence  that  is  destructive  of  all  trade  and  com- 
merce between  nation -and  nation,  so  it  is  the  interest  of  all  sovereign 
princes  to  punish  and  suppress  the  same. 

"  And  the  King  of  England(j)  hath  not  only  an  empire  and  sove- 
reignty over  the  British  sea,  but  also  an  undoubted  jurisdiction  and 
Power>  iQ  concurrency  with  other  princes  *aud  States,  for  the 
punishment  of  all  piracies  and  robberies  at  sea,  in  the  most 
remote  parts  of  the  world. 

"Now  as  to  the  nature  of  the  offence:  Piracy  is  a  robbery  committed 
upon  the  sea,  and  a  pirate  is  a  sea-thief. 

"Indeed,  the  word  'pirata,'  as  it  is  derived  from  w«<^dv,  'transire,  a 
transeundo  mare,'  was  anciently  taken  in  a  good  and  honourable  sense,(r) 
and  signified  a  maritime  knight,  and  an  admiral  or  commander  at  sea; 
as  appears  by  the  several  testimonies  and  records  cited  to  that  purpose, 
by  that  learned  antiquary  Sir  Henry  Spelman  in  his  Grlossarium.  And 
oat  of  him  the  same  sense  of  the  word  is  remarked  by  Dr.  Cowel,  in  his 
Interpreter;^)  and  by  Blount  in  his  Law  Dictionary.^)  But  afterwards 
the  word  was  taken  in  an  ill  sense,  and  signified  a  sea  rover  or  robber; 
either  from  the  Greek  word  Trtipa,  deceptio,  dolus,  deceit ;  (u}  or  from 
the  word  Trcipaiv,  transire,  of  their  wandering  up  and  down,  and  resting 
in  no  place,  but  coasting  hither  and  thither  to  do  mischief:  and  from 
this  sense,  «i'  x«rd  3«A<*<r<r«v  x.a.x.ovp'yoi,  sea-malefactors,  were  called 
vrapitTeti,  pirates." 

This  learned  Judge  also  cited  various  authorities  from  the  Civil  Law, 

r*388T  an<^  fr°m  jurists,  from  the  Statute  and  Common  *Law,  and  com- 

-l  mentators  thereon,  the  most  important  of  which  will  be  found  in 

(0)    Ib. 

(p)  "  Trials  of  Major  Bonnet  and  others  for  Piracy  (A.  D.  1718),"  Howell's  State 
Trials,  vol.  xv.  pp.  1234-37. 

(q)  See  "  Sir  Charles  Hedges's  Charge  at  the  Trial  of  Dawson,  &c.,"  State  Trials, 
vol.  xiii.  p.  455. 

(r)  "  Pirata  pro  milite  maritime,  and  rot  mipav,  i.  e.  transire  vel  pervagari.  Asser. 
Menevens.  Epist.  in  vit.  ^Ifredi.  Rex  JElfredus  jussit  cymbas  et  galeas,  i.  e.  Ion- 
gas  naves,  fabricari  per  regnura,  ut  navali  prselio  hostibus  adventantibus  obviaret. 
Impositisque  piratis  in  illis,  vias  maris  custodiendas  commisit..  Hoc  sensu  archi- 
piratem  dici  censeo  pro  nautarum  praefecto,  vel  quern  hodie  admirallum  nuncupa- 
mus.  In  quadam  enim  Charts  Regis  Edgari  Crenobio  Glastoniensi  confecta,  An. 
Dom.  97 f,  testium  unus,  Martusin  archipiratem  se  nominat.  Annal.  Gisburnenses, 
in  Will.  Rufo,  cap.  1.  Robertus  vero  comes  (Normania?)  attemtavit  venire  in  An- 
gliam  cum  magno  exercitu  ;  sed  a  piratis  regis,  qui  curam  maris  &.  rege  (Willielmo) 
susceperant,  repulsus  est." — Spelman,  Glossar.  in  voce  Pirata,  p.  460. 

Vid.  etiam  Selden,  Mare  Claus.  1.  ii.  c.  x.  p.  257. 

Engl.  et  Godolph.  Admir.  Jurisd.  c.  iii.  p.  25. 

(s)  In  the  word  "  Pirata."  (t)  In  the  word  "  Pirate." 

(u)  See  Ridley's  Yiew  of  the  Civil  Law,  p.  ii.  c.  i.  s.  3.  p.  127. 


RIGHT    OF    JURISDICTION.  287 

the  note;(x)  and  he  observed  that  Piracy  remained  a  felony  by  the  Civil 
Law;(y)  and  therefore,  though  the  Statute  of  28  Hen.  VIII.  gave  a  trial 
by  the  course  of  the  Common  Law,  yet  it  altered  not  the  nature  of  the 
offence;  and  the  indictment  must  mention  the  same  to  be  done  "super 
altum  mare,"  upon  the  high  sea,  and  must  have  both  the  words  "  felonice" 
and  "piratice,"(z)  and  therefore  that  even  a  pardon  of  all  felonies  did 
not  extend  to  this  offence,  but  ought  to  be  specially  named. 

In  1802,  Lord  Stowell  addressed  the  Grand  Jury  as  follows : — 
*"You  are  called  upon  to  discharge  the  office  of  grand  jurors  r#oocn 
for  the  jurisdiction  of  the  Admiralty  of  England — an  office  of  L 
great  extent  in  point  of  local  authority,  and  of  great  importance  in  its 
operation.  It  extends  over  all  criminal  acts  done  by  the  King's  subjects 
upon  the  sea,  in  every  part  of  the  globe.  You  have  to  inquire  of  such 
acts  committed,  wherever  the  ocean  rolls  j  and  in  the  beneficial  inter- 
course which  now  connects  all  the  nations  of  the  world,  and  of  which 
your  own  country  enjoys  so  fair  a  portion,  it  is  not  needful  that  I  should 
enlarge  upon  the  necessity  of  preventing,  by  a  vigilant  civil  discipline, 
all  disorders  which,  by  obstructing  its  peace  and  freedom,  might  en- 
danger its  existence."(a) 

CCCLVII.  The  English  High  Court  of  Admiralty  is  held  before  a 
judge  who  is  the  lieutenant  of  the  Lord  High  Admiral,  and  it  is  a  court, 
as  appears  from  the  foregoing  extracts  from  the  charges  of  judges,  of 
criminal  as  well  as  civil  jurisdiction.  The  authority  of  this  Court  is 
supported  by  various  statutes,  but  the  offences  cognizable  by  it  have  been 

(x)  3  Inst.  c.  xlix.  p.  113.     And  on  Littleton,  f.  391.  a. 

And  see  Bridal's  Jus.  Criminis,  pp.  70,  71. 

Coke,  3  Inst.  c.  xlix.  p.  113. 

Molloy,  de  Jure  Marit.  1.  i.  c.  iv.  s.  1.  p.  51. 

See  Laws  of  Oleron,  c.  47.  in  Godolph.  in  p.  211. 

Molloy,  ib.  s.xii.  p.  57. 

"  In  odium  piratarum,  praeter  alias  poenas,  statutum  est  ut  eorum  navigia  cuivis 
deripere  liceat." — Zouch,  De  Jure  Nautico,  pt.  i.  s.  x.  p.  400. 

"  A  piratis  aut  latronibus  capti  liberi  permanent." — Dig.  xlix.  t.  xv.  xix.  s.  ii. 

"  Qui  a  latronibus  captus  est,  servus  latronum  non  est :  nee  postliminium  illi 
necessarium  est." — Ib.  24. 

"  Et  quaepiratse  aut  latronesnobis  eripuerunt  non  opus  habent  postliminio,  quia 
jus  gentium  illis  non  concessit  ut  jus  Domini  mutare  possint.  Itaque  res  ab  illis 
captae  ubicunque  reperiunter  vindicari  possunt." — Grot,  de  Jur.  Bel.  ac  Pac.  1.  iii. 
c.  ix.  s.  xvi.  p.  561. 

See  27  Edw.  III.  c.  xiii.  p.  128. 

1  Croke,  p.  685,  Anonym. 

Hobart,  pp.  78,  79.,  Sir  R.  Bingley's  Case,  and  Edmian  and  Smith's  Case.  29 
Car.  II. 

3  Keble,  p.  744,  pi.  11. 

Hale,  PL.Cr.  p.  77. 

Holloy  p.  56. 

Hawkins,  PI.  Cr.  1.  i.  c.  xxxvii.  s.  ii.  p.  98. 

28  Hen.  VIII.  c.  xv.  s.  3,  p.  487. 

(y)  Coke,  p.  112. 

Hale,  p.  87. 

Molloy,  b.  i.  c.  iv.  s.  xxv.  xxvi.  p.  62. 

(z)  Leach's  Hawk.  PI.  Cr.  b.  i.  c.  37,  s.  15. 

(a)  "  Trial  of  William  Codling  and  others,"  Howell's  State  Trials  (1802)  vol. 
xxviii.  p.  178. 


288  PHILLIMORE    ON    INTERNATIONAL    LAW. 

by  recent  statutes(S)  made  also  triable  by  a  Central  Criminal  Court  in 
London,  of  which  the  Judge  of  the  Admiralty  is  made,  with  other  judges, 
a  member,  and  also  power  has  been  given(c)  to  any  judge  of  assize,  oyer 
and  terminer,  or  gaol  delivery,  without  the  issuing  of  a  special  commis- 
sion required  by  an  earlier  statute, (d)  to  inquire  of  and  determine  all 
offences  committed  at  sea  or  within  the  Admiralty  jurisdiction.  The 
jurisdiction  of  the  High  Court  of  Admiralty  however  still  remains,  for- 
tified indeed  in  some  respects  by  a  very  recent  statute,  (e)  and  it  has  been 
r*3Qfn  *recently  exercised  in  a  most  important  case  of  piracy,  called 

yu-l  "The  Magellan  Pirates." 

Towards  the  latter  end  of  1851,  there  was  an  insurrection  in  some  of 
the  dominions  belonging  to  the  state  of  Chili.  General  Cruz  was  at  the 
head  of  this  insurrection,  failed,  and  retired  into  the  country.  There 
was  a  Chilian  convict  settlement,  at  a  place  called  Punta  Arenas,  the 
garrison  of  which  consisted  of  160  soldiers  and  450  male  convicts.  An 
officer  in  that  garrison  raised  an  insurrection,  and  murdered  the  governor. 
In  conjunction  with  those  who  conspired  with  him,  he  seized  a  British 
vessel  called  The  Eliza  Cornish,  and  also  an  American  vessel,  called  The 
Florida.  They  murdered  the  master,  and  Mr.  Deane,  part  owner  of  The 
Eliza  Cornish,  and  also  the  owner  of  the  Florida.  These  facts  coming 
to  the  knowledge  of  Admiral  Moresby,  the  commander-in-chief  of  that 
station,  he  despatched  the  Virago,  a  British  steamer,  under  the  command 
of  Captain  Houlston  Stewart,  to  the  Straits  of  Magellan.  On  January 
28,  1852,  a  vessel  which  proved  to  be  The  Eliza  Cornish,  was  descried 
working  out  of  the  Straits;  chase  was  made,  and  a  shot  fired  across  her 
bow,  which  brought  her  to.  She  was  boarded,  and  seized  by  orders  of 
Captain  Stewart.  She  was  at  that  time  in  the  possession  of  a  large  num- 
ber of  the  persons  who  had  raised  the  insurrection  at  Punta  Arenas;  there 
were  found  on  board  her  128  men,  24  women,  and  18  children.  The 
guns  were  loaded,  and  the  men  were  armed;  they  were  under  the  com- 
mand of  a  man  named  Bruno  Brionis,  who  held  a  commission  from  Cam- 
biaso,  the  leader  of  the  insurrection.  These  men  were  aftewards  delivered 
up  to  the  Chilian  authorities  at  Valparaiso.  Captain  Stewart  proceeded 
in  search  of  Cambiaso,  and  the  other  insurgents,  and  he  secured  56  at 
Wood's  Bay.  On  February  15th,  Captain  Stewart  discovered  The 
Florida  in  possession  of  a  large  number  of  insurgents;  it  was  said  that 
these  insurgents  had,  whilst  at  sea,  risen  against  Cambiaso  and  five 
others,  and,  with  the  aid  of  the  American  master  and  crew,  brought  the 
vessel  to  the  port  where  Captain  Stewart  had  found  her.  On  board  The 
r*3Q1  1  * -Florida  was  found  treasure  which  had  been  plundered  from 
J  The  Eliza  Cornish.  All  the  persons  on  board  The  Florida,  not 
American,  were  given  up  to  the  Chilian  authorities.  Upon  this  state  of 
facts,  Captain  Stewart  and  the  officers  and  crew  of  H.  M.  S.  Virago,  ap- 
plied to  the  Court  of  Admiralty  for  a  certificate,  according  to  a  provision 
of  a  recent  statute,  in  order  that  they  might  obtain  the  payment  of  bounty 


(6)  4  &  5  William  IV.  c.  36. 
&  8  Victoria,  c.  2. 

Victoria,  c.  2.  (d)  28  Henry  VIII.  c.  15. 

'  Victoria,  c.  26,  (15  June,  1850). 


(c)  7  &  8  Vic 
(e)  13  &  14  ^ 


BIGHT    OF    JURISDICTION.  289 

for  capturing  these  pirates  in  the  Straits   of  Magellan.     The  present 
learned  Judge(/)  of  the  High  Court  of  Admiralty  said : — 

"As  to  the  general  character  of  these  transactions,  I  really  entertain 
no  doubt  that  they  were  piratical  acts,  in  no  degree  connected  either 
with  insurrection  or  rebellion.  In  one  sense  they  were  acts  of  wanton 
cruelty  in  the  murder  of  foreign  subjects,  and  in  the  indiscriminate  plun- 
der of  their  property.  I  am  of  opinion  that  the  persons  who  did  these 
acts  were  guilty  of  piracy,  and  were  to  be  deemed  pirates  unless  some  of 
the  other  objections  which  have  been  urged  ought  to  prevail.  It  has 
been  said  that  these  acts  were  not  committed  on  the  high  seas,  and  there- 
fore this  murder  and  robbery  not  properly  or  legally  piratical.  But  in 
this  case  the  ships  were  carried  away  and  navigated  by  the  very  same 
persons  who  originally  seized  them.  I  .consider  the  possession  at  sea  to 
have  been  a  piratical  possession,  and  the  carrying  away  the  ships  on  the 
high  seas  to  have  been  piratical  acts."(^) 

*With  respect  to  the  general  character  of  piratical  acts  the 
learned  Judge  observed : — 

"I  apprehend  that  in  the  administration  of  our  criminal  law,  generally 
speaking,  all  persons  are  held  to  be  pirates  who  are  found  guilty  of 
piratical  acts,  and  piratical  acts  are  robbery  and  murder  upon  the  high 
seas.  I  do  not  believe  that,  even  where  human  life  was  at  stake,  our 
courts  of  common  law  ever  thought  it  necessary  to  extend  their  inquiry 
further.  If  it  was  clearly  proved  against  the  accused  that  they  had 
committed  robbery  and  murder  upon  the  high  seas,  they  were  adjudged 
to  be  pirates,  and  suffered  accordingly.  It  was  never  deemed  necessary 
to  inquire  whether  the  parties  so  convicted  had  intended  to  rob  or  to 
murder  on  the  high  seas  indiscriminately.  Though  the  municipal  law 
of  different  countries  may  and  does  differ  in  many  respects  as  to  its  defi- 
nition of  piracy,  yet  I  apprehend  that  all  nations  agree  in  this,  that  acts 
such  as  robbery  and  murder  on  the  high  seas  are  piratical  acts,  and  con- 
trary to  the  law  of  nations.  It  does  not  follow  that,  because  rebels  and 
insurgents  may  commit  against  the  ruling  powers  of  their  own  country 
acts  of  violence,  they  may  not  commit  piratical  acts  against  the  subjects 

(/)  Dr.  Lushington. 

(g)  A  question  arose  as  to  the  construction  of  the  13  &  14  Viet.  c.  26,  (which 
had  repealed  6th  Geo.  IV.  c.  49.) 

16  Jurist,  p.  1145.  The  Magellan  Pirates;  contains  report  of  this  preliminary 
objection.  The  second  section  of  the  Act  enacts  "  That  whenever  any  of  Her 
Majesty's  ships  or  ve%els  of  war,  or  hired  armed  vessels,  or  any  of  the  ships  or 
vessels  of  war  of  the  East  India  Company,  or  their  boats,  or  any  of  the  officers 
and  crews  thereof,  shall,  after  the  said  first  day  of  June,  attack  or  be  engaged 
with  any  persons  alleged  to  be  pirates  afloat  or  ashore,  it  shall  be  lawful  for  the 
High  Court  of  Admiralty  of  England,  and  for  all  courts  of  Vice-Admiralty  in  any 
dominions  of  Her  Majesty  beyond  the  seas,  including  those  courts  of  Vice-Admiralty 
within  the  territories  under  the  government  of  the  East  India  Company,  to  take 
cognizance  of  and  to  determine  whether  the  persons  or  any  of  them  so  attacked 
or  engaged  were  pirates,  and  to  adjudge  what  was  the  total  number  of  pirates  so 
engaged  or  attacked,  specifying  the  number  of  pirates  captured,  and  what  were 
the  vessels  and  boats  engaged."  At  the  hearing  of  the  case  the  learned  judge 
said,  "  It  appears  to  me  that  in  affixing  a  construction  to  this  statute,  I  am  enti- 
tled to  hold  that  the  intention  of  the  legislature  was,  that  acts  of  piracy  might 
constitute  pirates." 


290  PHILLIMORE    ON    INTERNATIONAL    LAW. 

of  other  states,  especially  if  such  acts  are  in  no  degree  connected  with 
the  insurrection  or  rebellion.  Even  an  independent  State  may  be  guilty 
of  piratical  acts.  What  are  many  of  the  African  tribes  at  this  moment? 
Is  it  not  notorious  that  tribes  now  inhabiting  the  African  coast  of  the 
Mediterranean  will  send  out  their  boats  and  catch  any  ships  becalmed 
upon  their  coasts?  Are  they  not  pirates  because,  *perhaps, 
their  sole  livelihood  may  not  depend  upon  piratical  acts?  I  am 
aware  that  it  has  been  said  that  a  State  cannot  be  piratical,  but  I  am 
not  disposed  to  assent  to  such  dictum  as  a  universal  proposition."(7i) 

CCCLVIII.  We  now  approach  the  delicate  subject  of  privateers  or 
commissioned  private  ships.  The  right  of  making  war  being  inherent 
in  the  government  of  every  independent  state,  it  follows  as  a  necessary 
consequence  that  it  is  competenb»to  such  government  to  commission  such 
national  vessels  as  it  may  think  proper,  to  assist  in  carrying  on  the  war, 
to  issue  Letters  of  Marque(i)  according  to  the  legal  phrase. 

So  long  as  these  vessels  sail  under  a  national  commission,  and  within 
the  terms  of  that  commission,  it  is  quite  clear  that  they  are  not  and 
never  have  been  considered  as  pirates  by  International  Law.(7c)  And 
even  if  they  exceed  the  limits  of  their  commission  and  commit  unwar- 
rantable acts  of  violence,  if  no  piratical  intention  can  be  proved  against 
them,  they  are  responsible  to  and  punishable  by  the  State  alone  from 
which  their  commission  has  issued. (?)  A  vessel  which  *takes 
commissions  from  both  belligerents  is  guilty  of  piracy,  for  the 
one  authority  conflicts  with  the  other.  But  a  nicer  question  has  arisen 
with  respect  to  a  vessel  which  sails  under  two  or  more  commissions 
granted  by  allied  powers  against  a  common  enemy.  The  better  opinion 
seems  to  be  that  such  practice  is  irregular  and  inexpedient,  but  does  not 
carry  with  it  the  substance  or  the  name  of  Piracy. 

"  The  law"  (Sir  Leoline  Jenkins  says  in  the  letter  already  cited)  "  dis- 
tinguishes between  a  pirate  who  is  a  highwayman  and  sets  up  for  rob- 
bing, either  having  no  commission  at  all,  or  else  hath  two  or  three,  and 
a  lawful  man-of-war  that  exceeds  his  commission." 

The  question  remains,  what  is  the  character  affixed  by  the  law  to  the 

(A)  The  Shipping  and  Mercantile  Gazette  of  Wednesday,  27th  July,  1853. 

See  also  report  of  this  case,  which  was  decided  in  1853,  in  the  Common  Law 
and  Equity  Reports,  vol.  i.  pt.  viii.  p.  81,  at  the  end  of  the  volume. 

(i)  Navis  praedatoria  (Bynk.  Q.  J.  P.  1.  i.  c.  18.) : — 

Privateer.  Ship  commissioned ;  furnished  with  letters  of  marque  (muni  de  com- 
mission ;  lettres  de  marque.) 

Croiseur,  Armateur,  (and  sometimes,)  Corsaire. 

Caper,  Kreuzer. 

Araatore.     Nave  armataper  corseggiare  cor  sale;  nave  armata  in  cor  so. 

(k)  Vattel,  1.  iii.  c.  xv.  s.  229. 

Kluber,  s.  260. 

(I)  Wheaton,  El6m.  i.  141. 

Bynkershoek,  Q.  J.  P.  i.  c.  xvii. :  "  Qui  autum  nullius  principis  auctoritate  sive 
mari  sive  terra  rapiunt  piratorum  praedonumque  vocabulo  intelliguntur.  Unde, 
nt  piratae  puniuntur,  qui  ad  hostem  depraedandum  enavigant  sine  mandato  prae- 
fecti  maris  et  non  prasstitis  quae  porro  prsestari  desiderant.  .  .  .  Sed  Pirata  quis 
sit,  nee  ne,  inde  pendet  an  mandatum  praedandi  habuerit,  si  habuerit  et  arguatur 
id  excessisse  non  continuo  eum  habuerim  pro  Pirata." 


RIGHT     OF    JURISDICTION.  291 

vessel  of  a  neutral  State  armed  as  a  privateer,  with  a  commission  from 
the  belligerent  ?  That  such  a  vessel  is  guilty  of  a  gross  infraction  of 
International  Law,(Z)  that  she  is  not  entitled  to  the  liberal  treatment  of 
a  vanquished  enemy,  is  wholly  unquestionable;  but  it  would  be  difficult 
to  maintain  that  the  character  of  piracy  has  been  stamped  upon  such  a 
vessel  by  the  decision  of  International  Law.  M.  Ortolan  admits  that 
this  position  cannot  be,  though  he  desires  that  it  should  be,  main- 
tained, (m)  At  the  same  *time  States  have  covenanted  that  they 
will  prevent  their  subjects,  under  heavy  penalties,  from  accepting 
such  commissions,  as  is  seen  in  the  Treaty  of  1786  (26th  September) 
between  Great  Britain  and  France ;(«)  and  have  even  covenanted  that  it 
shall  be  considered  by  their  municipal  law  as  Piracy.  Among  the  arti- 
cles of  the  French  Ordonnance  de  la  Marine,  collected  by  Yalin,  is  the 
following : — 

"Defendons  a  tous  nos  sujets  de  prendre  commissions  d'aucuns  Rois, 
Princes  ou  Etats  etrangers,  pour  armer  des  vaisseaux  en  guerre,  et  courir 
la  mer  sous  leur  banniere,  si  ce  n'est  par  notre  permission,  a  peine  d'etre 
traites  comme  pirates."(o)  Treaties  between  France  and  Holland,  in 
1662,  and  between  France  and  the  United  States  of  North  America,  in 
1778,  declare  such  privateering  carried  on  by  the  subjects  of  either  nation 

(I)  See  the  law  laid  down  to  this  effect  in  the  following  American  cases,  viz : — 

"  Trial  of  Gideon  Henfield,  for  illegally  enlisting  in  a  French  Privateer."  In 
the  Circuit  Court  of  the  United  States  for  the  Pennsylvanian  District.  Philadel- 
phia, 1793,  p.  49. 

"Trial  of  John  Etienne  Guinet,  et  al.  for  fitting  out  and  arming  a  French  armed 
vessel."  In  the  Circuit  Court  of  the  United  States  for  the  Pennsylvanian  District. 
Philadelphia,  1795,  p.  93. 

"  Trial  of  Francis  Villato,  for  entering  on  board  a  French  Privateer."  In  the 
Circuit  Court  of  the  United  States  for  the  Pennsylvanian  District.  Philadelphia, 
1797,  p.  185. 

"  Trial  of  Isaac  Williams,  for  accepting  a  Commission  in  a  French  armed  vessel, 
and  serving  in  same  against  Great  Britain."  In  the  Circuit  Court  of  the  United 
States  for  the  Connecticut  District.  Hartford,  1799,  p.  652. — State  Trials  of  the 
United  States  (by  Wharton),  published  at  Philadelphia,  1849. 

(ra)  Ortolan,  pp.  260-1 :  Mais  qu'il  y  ait  la  un  veritable  crime  de  piraterie  de 
droit  des  gens,  c'est  qui  n'est  pas  encore  universellement  reconnu." 

(n)  Art.  III.:  "  On  est  aussi  convenu,  et  il  ete  arrfite",  que  les  sujets  et  habitans 
des  royaumes,  provinces  et  e"tats  de  leurs  Majestes,  n'exerceront  a  1'avenir  aucuns 
actes  d'hostilit6  ni  violences  les  uns  contre  les  autres,  tant  sur  mer  que  sur  terre, 
fleuves,  rivieres,  ports  et  rades,  sous  quelque  nom  et  pretexte  que  ce  soit;  ensorte 
que  les  sujets,  de  part  et  d'autre,  ne  pourront  prendre  aucune  patente,  commission, 
ou  instruction  pour  armemens  particuliers,  et  faire  la  course  en  mer,  ni  lettres 
vulgairement  appellees  de  represailles,  de  quelques  princes  ou  etats,  ennemis  de 
1'un  ou  de  1'autre,  ni  troubler,  molester,  empe'cher  ou  endommager,  en  quelque 
maniere  que  ce  soit,  en  vertu  ou  sous  pretexte  de  telles  patentes,  commissions  ou 
lettres  de  represailles,  les  sujets  et  habitans  susdits  du  roi  de  la  Grande-Bretagne, 
ou  du  Roi  Tres-Chre'tien,  ni  faire  ces  sortes  d'armemens,  ou  s'en  servir  pour  aller 
en  mer.  Et  seront  a  cette  fin  toutes  et  quantes  fois,  qu'il  sera  requis  de  part  et 
d'autre,  dans  toutes  les  terres,  pays,  et  domaines  quels  qu'ils  soient,  tant  de  part 
que  d'autre,  renouvelle"es  et  publiees,  des  defenses  etroites  et  expresses  d'user,  en 
aucune  maniere,  de  telles  commissions  ou  lettres  de  represailles,  sous  les  plus 
grandes  peines  qui  puissent  etre  ordonne"es  contra  les  infracteurs,  outre  la  resti- 
tution et  la  satisfaction  entiere,  dont  ils  seront  tenus  envers  ceux  auxquels  ils 
auron  cause"  quelque  dommage." — Martens,  Rec.  de  Tr.  vol.  iv.  pp.  156-7. 

(o)  L.  iii.  t.  ix.  art.  iii.  t.  ii.  p.  235. 


292  PHILLIMORE    ON     INTERNATIONAL    LAW. 

f~*3QPl  *°  ^e  Piracy-(jp)  A  *similar  Treaty  was  entered  into  between 
-I  the  North  American  United  States  and  Prussia(g')  in  1785.  A 
Treaty  between  Denmark  and  the  Republic  of  G-enoa,  concluded  on  the 
30th  July,  1789,  contained  a  similar  provision. (/•)  And  all  the  Treaties 
contracted  by  France  with  the  American  Republics  contain  a  provision, 
of  which  the  16th  article  of  the  Treaty  with  Venezuela,  (25th  March, 
1843,)  may  serve  as  a  sample : — 

f*3Q71  *"  ^'  ^'^  arr*ve  (lue  l'une  des  deux  parties  contractantes  soit 
-I  en  guerre  avec  quelque  autre  pays  tiers,  1'autre  partie  ne  pourra, 
dans  aucun  cas,  autoriser  ses  nationaux  a  prendre  ni  accepter  des  com- 
missions ou  lettres  de  marque,  pour  agir  hostilement  contre  la  premiere, 
ou  pour  inquieter  le  commerce  et  les  proprietes  de  ses  sujects  ou  cito- 
yens."(s) 

On  the  3rd  of  July,  1819,  the  British  Legislature  provided,  among 
other  things,  by  a  statute  commonly  called  "  The  Foreign  Enlistment 
Act,"(<)  that  if  any  person  within  any  part  of  the  United  Kingdom,  or 
in  any  part  of  His  Majesty's  dominions  beyond  the  seas,  shall,  without 
the  leave  and  licence  of  His  Majesty  for  that  purpose  first  had  and  ob- 
tained as  aforesaid,  equip,  furnish,  fit  out,  or  arm,  or  attempt  or  endea- 

(p]  "Aucun  sujet  du  Roi  Tre's-Chre'tien  ne  prendra  de  commission  de  lettres  de 
marque  pour  armer  quelque  vaisseau  ou  vaisseaux,  a  1'effet  d'agir  comme  corsaire 
contre  les  dits  Etats-TJnis  ou  quelques-uns  d'entr'eux,  ou  contre  les  sujets,  peuples 
ou  habitans  d'iceux,  ou  contre  leur  proprie'te',  ou  celle  des  habitans  d'aucun  d'en- 
tr'eux, de  quelque  prince  que  ce  soit,  avec  lesquels  les  dits  Etats-Unis  seront  en 
guerre.  De  meme,  aucun  citoyen,  sujet  ou  habitant  des  susdits  Etats-Unis  et  de 
quelqu'un  d'entr'eux,  ne  demandera  ni  n'acceptera  aucun  commission  ou  lettre  de 
marque  pour  armer  quelque  vaisseau  ou  vaisseaux,  pour  courre-sus  aux  sujets  de 
S.  M.  T.  C.,  ou  quelqu'un  d'entr'eux,  ou  leur  proprie'te',  de  quelque  prince  ou  etats 
que  ce  soit,  avec  qui  sa  dite  Majeste  se  trouvera  en  guerre ;  et  si  quelqu'un  de 
l'une  ou  de  1'autre  nation  prenoit  de  pareilles  commissions  ou  lettres  de  marque, 
il  sera  puni  comme  pirate." — Martens,  Rec.  de  Tr.  (1778,)  vol.  ii.  p.  597.  (Art.  xxi.) 

(g)  Art.  XX.  "  Aucun  citoyen  ou  sujet  de  l'une  des  deux  parties  contractantes 
n'acceptera  d'une  puissance  avec  la  quelle  1'autre  pourrait  6tre  en  guerre,  ni  com- 
mission ni  lettre  de  marque  pour  armer  en  course  contre  cette  derniere,  sous  peine 
d'etre  puni  comme  pirate.  Et  ni  1'un  ni  1'autre  des  deux  etats  ne  louera,  pretera 
ou  donnera  une  partie  de  ses  forces  navales  ou  militaires  a  1'ennemi  de  1'autre 
pour  1'aider  a  agir  offensivement  ou  defensivement  contre  1'etat  qui  est  en 
guerre." — (10  Sept.,  1785.)  Martens,  Rec.  de  Tr.  iv.  p.  45. 

(r)  "  Les  sujets  de  part  et  d'autre  ne  pourront  prendre  ni  recevoir  patentes,  in- 
structions, ni  commissions  pour  armemens  particuliers,  et  pour  faire  la  course  en 
mer,  ni  letters  patentes  appellees  vulgairement  lettres  de  represailles  d'aucun 
prince,  ou  e"tat  ennemi  de  l'une  ou  de  1'autre  partie  contractante.  Us  ne  devront 
jamais  en  quelque  maniere  que  ce  puisse  etre,  faire  valoir  des  semblables  patentes, 
commissions,  ou  lettres  de  represailles  d'une  puissance  tierce,  pour  troubler, 
molester,  empdcher,  ou  endomager  les  sujests  respectifs,  ni  faire  de  tels  armemens 
et  courser,  sous  peine  d'etre  regarded  et  traite"s  comme  pirates. 

"  A  cette  fin  les  hautes  parties  contractantes  promettent  re"ciproquement  de 
faire  publier,  le  cas  avenant,  des  defenses  a  leurs  sujets,  sous  les  plus  rigoureuses 
peines,  d'exercer  de  pareilles  pirateries,  et  si  au  me"pris  de  ces  memes  defenses 
quelqu'un  n'en  commit  pas  moins  de  semblables  contraventions,  il  sera  puni  des 
peines  prescrites  suivant  1'ordonnance  e"manee,  et  il  indemnisera  et  dedommagera 
entierement  celui  ou  ceux,  sur  lesquels  il  aurait  fait  des  prises." — Martens,  Rec. 
de  Tr.  (1789,)  vol.  iv.  pp.  447-8.  (Art  xii.) 

(*)  Martens,  Rec.  de  Tr.  (1843),  vol.  xxxiv.  p.  170. 

See  Manning's  Law  of  Nations,  for  other  Treaties  on  this  subject,  p.  111. 

(t)  This  statute  will  be  again  considered  in  that  part  of  this  work  which  will 
treat  of  the  jus  belli,  and  of  the  Rights  and  Duties  of  Neutrals. 


RIGHT     OF    JURISDICTION.  293 

vour  to  equip,  furnish,  fit  out,  or  arm,  or  procure  to  be  equipped,  furnished, 
fitted  out,  or  armed,  or  shall  knowingly  aid,  assist,  or  be  concerned  in 
the  equipping,  furnishing,  fitting  out,  or  arming  of  any  ship  or  vessel, 
vrith  intent  or  in  order  that  such  ship  or  vessel  shall  be  employed  in  the 
service  of  any  foreign  prince,  state,  or  potentate,  or  of  any  foreign  colony, 
province,  or  part  of  any  province  or  people,  or  of  any  person  or  persons 
exercising  or  assuming  to  exercise  any  powers  of  government  in  or  over 
any  foreign  state,  colony,  province,  or  part  of  any  province  or  people,  as 
a  transport  or  store  ship,  or  with  intent  to  cruise  or  commit  hostilities 
against  any  prince,  state,  or  potentate,  or  against  the  subjects  or  citizens 
of  any  prince,  state,  or  potentate,  or  against  the  persons  exercising  or 
assuming  to  exercise  the  powers  of  government  in  any  colony,  province, 
or  part  of  any  province  or  country,  or  against  the  inhabitants  of  any  for- 
eign colony,  province,  or"  part  of  any  province  or  country,  with  whom 
His  Majesty  *shall  not  then  be  at  war,(w)  such  person  shall  be  [-,000-1 
punishable  by  fine  and  imprisonment,  and  such  ship  or  vessel  L 
forfeited. 

In  1818,  the  year  before  the  passing  of  this  Act,  the  United  States 
revised  and  re-enacted  a  law  passed  in  1794,  of  which  the  provisions  are 
pretty  much  the  same  as  those  of  the  English  statute.  The  North 
American  United  States  may  perhaps  claim  to  be  the  first  country 
which  has  systematically  endeavoured  to  put  an  end  to  the  practice  of 
privateering,  (cc) 

CCCLIX.  Soon  after  the  abdication  of  James  II.  an  International  ques- 
tion of  very  great  importance  arose,  namely,  what  character  should  be 
ascribed  to  Privateers  commissioned  by  the  monarch,  who  had  abdicated, 
to  make  war  against  the  adherents  of  William  III.,  or  rather  against  the 
English  while  under  his  rule  ?  The  question  in  fact  involved  a  discus- 
sion of  the  general  principle,  whether  a  deposed  sovereign,  claiming  to  be 
sovereign  dejure,  might  lawfully  commission  privateers  against  the  sub- 
jects and  adherents  of  the  sovereign  de  facto  on  the  throne;  or  whether 
such  privateers  were  not  to  be  considered  as  Pirates,  inasmuch  as  they 
were  sailing  animo  furandi  et  deprsedandi,  without  any  national  charac- 
ter. The  question,  it  should  be  observed,  did  not  arise  in  its  full  breadth 
and  importance  until  James  II.  had  been  expelled  from  Ireland  as  well 
as  England,  until,  in  fact,  he  was  a  sovereign,  claiming  to  be  such  de 
jure,  but  confessedly  without  territory.  It  appears  that  James,  after  he 
was  in  this  condition,  continued  to  issue  letters  of  marque  to  his  followers. 
The  Privy  Council  of  William  III.  desired  to  hear  civilians  upon  the  point 
of  the  piratical  character  of  such  privateers.  The  arguments  on  both 
sides  are  contained  in  a  curious  and  rather  rare  pamphlet,  pub- 
lished  by  *one(y)  of  the  counsel  (Dr.  Tindal)  for  King  William,  in 
the  years  1693— 4. (z)  The  principal  arguments  for  the  piratical  character 
of  the  privateers  appear  to  have  been  — 

(u)  59  Geo.  III.  c.  69.  sec.  vii. 
(x)  1  Kent  Comment,  p.  122. 

Vide  Morning  Post  and  Times  of  March  9,  1854,  and  General  Watson  Webb's 
letter  in  the  latter  journal.  (y\  The  other  was  Dr.  Littleton, 

(z)  An  edition  was  printed  in  1734,  at  London,  "  for  the  proprietors,"  after  his 


294          PHILLIMORE    ON    INTERNATIONAL    LAW. 

1.  That  International  Law  is  chiefly  built  upon  the  general  good  of  all 
the  societies  which  are  members  of  the  universal  community. 

2.  That  long  custom,  in  things  indifferent,  is  not  binding  upon  nations 
after  they  have  publicly  declared  that  they  intend  no  longer  to  be  bound 
by  them, — instanced  in  the  case  of  resident  ambassadors,  whom  a  nation 
might  without  violation  of  Law,  refuse  to  receive. 

3.  That  nothing  can  more  diminish  from  the  sacredness  of  the  Law  of 
Nations  than  to  allow  it  no  other  foundation  than  the  practice  of  the 
generality  of  sovereigns,  who  often  sacrifice  the  happiness  of  their  own 
nation  to  the  gratification  of  their  passions. 

4.  That  the  Laws  of  Nations  relate  to  their  mutual  commerce  and  cor- 
respondence, which  cannot  be  maintained  but  by  having  recourse  to  those 
who  have  the  power  of  making  Peace  and  War,  and  all  Contracts  for  the 
nations  which  they  represent,  whose  acts  are  the  acts  of  the  whole  body, 
and  bind  the  members  as  much  as  if  each  particular  person  had  assented. 
That,  on  account  of  this  power,  the  governors  of  each  society  are  allowed 
certain  prerogatives  by  other  nations  over  whom  they  have  no  authority 
and  who  are  no  otherwise  concerned  with  them,  but  as  they  have  the 
power  of  making  contracts  for  the  nation  which  they  govern  ;  that  there- 
fore de  facto  Governors  are  recognized,  as  Cromwell  had  recently  been, 
by  other  States. 

5.  That  the  leagues  which  princes  make  with  one  another  do  not  oblige 
r*400~l  ^em  *°  one  anotner  longer  than  they  are  in  *possession  of  their 

-"  Government,  because  they  are  made  on  account  of  the  power 
which  each  nation  has  to  afford  mutual  assistance  and  benefit  to  another, 
and  this  reason  still  continues,  though  the  person  who  was  entrusted  with 
authority  to  make  them  be  different,  the  former  person  being  then  no 
further  concerned  therein  than  according  to  the  Civil  Law  a  proctor  would 
be  with  a  cause  after  the  revocation  of  his  pro$y. 

6.  That  though  the  sovereign  of  a  country  in  which  a  deposed  prince 
took  refuge,  might  accord  to  him  what  national  privileges  he  pleased, 
yet  that  he  could  not  accord  to  him  international  privileges,  which  belong 
to  those  who  have  summum  imperium,  and  not  to  a  titular  prince  who 
in  the  eye  of  International  Law  is  regarded  as  a  private  person.     That 
such  titular  prince  was  in  fact  a  subject — sulditus  temporarius — of  the 
sovereign.     What  right  could  he  claim  by  the  Law  of  Nations,  when  no 
nations  were  in   any  way  concerned  with  his  actions?     Because,  as   to 
foreign  nations,  they  had  only  recognised  him  as  having  power  to  make 
national  contracts,  which  power  and  the  consequent  privileges  he  had 
ceased  to  have.     As  to  his  own  nation,  that  had  entrusted  its  affairs  to 
other  hands,  and  was  no  more  concerned  with  him  than  a  foreign  State. 

7.  That  a  necessary  consequence  of  his  being  reduced  to  the  status  of 
a  private  person,  and  of  not  having  any  of  the  privileges  which  belong 
to  those  who  possess  summum  imperium,  was  an  incapacity  of  grant- 
ing commissions  to  private  men  of  war  to  disturb  the  trade  of  any 
nation. 

death,  to  which  I  referred. — "  An  Essay  concerning  the  Laws  of  Nations  and  the 
Rights  of  Sovereigns,  by  Matthew  Tyndal,  LL.  D." 


RIGHT     OF    JURISDICTION.  295 

8.  That  therefore  they  who  acted  under  such  commission  may  be  dealt 
with  as  if  they  had  acted  under  their  own  authority  or  the  authority  of 
any  private  person,  and  therefore  might  be  treated  as  pirates. 

9.  That  if  such  a  titular  prince  might  grant  commissions  to  seize  the 
ships  aiad  goods  of  all  or  most  trading  nations,  he  might  derive  a  con- 
siderable revenue  as  a  chief  of  such  freebooters,  and  that  it  would  be 
madness  in  nations  not  to  use  the  utmost  rigour  of  the  law  against  such 
vessels. 

*10.  That  if  he  could  grant  a  commission  to  take  the  ships  of 
a  single  nation,  it  would  in  effect  be  a  general  licence  to  plunder, 
because  those  who  were  so  commissioned  would  be  their  own  judges  of 
whatever  they  took,  whether  it  were  lawful  prize  or  not,  because,  in 
another  prince's  territories  whither  the  pretended  prize  must  be  brought, 
the  titular  and  ousted  prince  could  erect  no  court  of  judicature  to  judge 
according  to  Maritime  and  International  Law  concerning  the  property  so 
taken.  He  could  neither  enforce  the  attendance  of  witnesses,  nor  the 
restitution  of  ships  unjustly  taken,  nor  provide  any  of  the  essential 
requisitions  of  justice.  His  own  residence  in  the  country  is  precarious, 
and  at  any  moment  he  might  be  banished  from  it. 

11.  The  sovereign  into  whose  ports  the  pretended  prizes  would  be 
taken,  would  have  no  legal  right  to  adjudicate  upon  them,  and  assuming 
that  he  had  the  right — what  if  he  refused  to  exercise  it  ? 

12.  That  the  reason  of  the  thing  which  pronounced  that  Robbers  and 
Pirates,  when  they  formed  themselves  into  a  civil  society,  became  just 
enemies,  pronounced  also  that  a  king  without  territory,  without  power  of  pro- 
tecting the  innocent  or  punishing  the  guilty,  or  in  any  way  of  administering 
justice,   dwindled  into  a  Pirate  if  he  issued  commissions  to  seize  the 
goods  and  ships  of  nations;  and  that  they  who  took  commissions  from 
him  must  be  held  by  legal  inference  to  have  associated  sceleris  causa, 
and  could  not  be  considered  as  members  of  a  civil  society. 

13.  Lastly,  that  besides  all  these  reasons  the  persons  being  English- 
men were  morally  incapable  to  take,  from  any  king  whatever,  a  commis- 
sion to  attack,  in  a  hostile  manner,  the  goods  and  ships  of  their  fellow- 
subjects.     The    argument    on   the  other   side   is   thus   stated   by  the 
author : — 

"  The  occasion  of  sending  for  the  civilians,  after  some  of  them  that 
were  consulted  had  given  their  opinions  in  writing,  was,  as  the  Lords 
told  Sir  Thomas  Piuford  and  Dr.  Oldys  (who  had  declared  that  they 
were  not  pyrates,  without  offering  to  show  the  least  reason  why  they 
were  of  that  *mind)  to  hear  what  reason  they  had  to  offer  for  r*^ AO-I 
their  opinion. 

"  Then  Sir  Thomas  Pinfold  said,  it  was  impossible  they  should  be 
pyrates,  for  a  pyrate  was  hostishumani generis,  but  they  were  not  enemies 
to  all  mankind ;  therefore  they  could  not  be  pyrates.  Upon  which  all 
smiled,  and  one  of  the  Lords  asked  him,  Whether  there  ever  was  any 
such  thing  as  a  pyrate,  if  none  could  be  a  pyrate  but  he  that  was 
actually  in  war  with  all  mankind  ?  To  which  he  did  not  reply,  but 
only  repeated  what  he  had  said  before.  Hostis  humani  generis  is  neither 
a  definition,  nor  so  much  as  a  description  of  a  pyrate,  but  a  rhetorical 


296  PH(ILLIMORE    ON    INTERNATIONAL    LAW. 

invective  to  show  the  odiousness  of  that  crime.  As  a  man,  who,  tho' 
he  receives  protection  from  a  government,  and  has  sworn  to  be  true  to 
it,  yet  acts  against  it  as  much  as  he  dares,  may  be  said  to  be  an  enemy 
to  all  governments,  because  he  destroyeth,  as  far  as  in  him  lieth,  all 
government  and  all  order,  by  breaking  all  those  ties  and  bonds  that  unite 
people  in  a  civil  society  under  any  government;  so  a  man  that  breaks 
the  common  rules  of  honesty  and  justice,  which  are  essential  to  the  well- 
being  of  mankind,  by  robbing  but  one  nation,  may  justly  be  termed 
Tiostis  humani  generis  ;  and  that  nation  has  the  same  right  to  punish  him, 
as  if  he  had  actually  robbed  all  nations. 

"  Dr.  Oldys  said,  that  the  late  king,  being  once  a  king,  had,  by  the 
Laws  of  Nations,  a  right  to  grant  commissions ;  and  that,  tho'  he  had 
lost  his  kingdoms,  he  still  retained  a  right  to  the  privileges  that  belong 
to  Sovereign  Princes.  It  was  asked  him  by  one  of  the  Lords,  whether 
he  could  produce  an  author  of  any  credit,  that  did  affirm,  that  he  who 
'had  no  kingdom,  nor  right  to  any,  could  grant  commissions;  or  had  a 
right  to  any  of  those  privileges,  that  belong  to  Sovereign  Princes  ? 
And  that  no  king  would  suffer  those  privileges  to  be  paid  to  Christina, 
•when  she  ceased  to  be  Queen  of  Sweedland  ;  and  that  it  was  the  judg- 
ment of  all  the  lawyers  that  ever  mentioned  that  point,  that  she  had  no 
r*J.O<n  right  to  them ;  and  he  did  hope,  that  those  *who  had  sworn  to 
-I  their  present  majesties,  did  not  believe  the  late  king  had  still  a 
right :  and  that  that  point  was  already  determined,  and  would  not  be 
suffered  to  be  debated  there.  To  which  he  answered,  that  King  James 
was  allowed  very  lately  the  rights  of  a  King,  and  that  those  who  acted 
by  his  commission  in  Ireland  were  treated  as  enemies  ;  and  people  that 
followed  his  fortune,  might  still  suppose  he  had  a  right,  which  was 
enought  o  excuse  them  from  being  guilty  of  pyracy. 

"One  of  the  Lords  then  demanded  of  him,  If  any  of  their  majesties 
subjects,  by  virtue  of  a  commission  from  the  late  king,  should  by  force 
seize  the  goods  of  their  fellow-subjects  by  land,  whether  that  would 
excuse  them  from  being  guilty  at  least  of  robbery  ?  If  it  would  not 
from  robbery,  why  should  it  more  excuse  them  from  pyracy  ?  To 
which  he  made  no  reply.  Then  the  Lords  asked  Sir  Thomas  Pinfold 
and  Dr.  Oldys,  Whether  it  were  not  treason  in  their  majesties  subjects, 
to  accept  a  commission  from  the  late  king  to  act  in  a  hostile  manner 
against  their  own  nation  ?  Which  they  both  owned  it  was  (and  Sir 
Thomas  Pinfold  has  since,  as  I  am  informed,  given  it  under  his  hand, 
that  they  are  traytors.)  The  Lords  farther  asked  them,  If  the  seizing 
the  ships  and  goods  of  their  majesties  subjects  were  treason,  why  they 
would  not  allow  it  to  be  pyracy  ?  Because  pyracy  was  nothing  else  but 
seizing  of  ships  and  goods  by  no  commission  ;  or  what  was  all  one,  by  a 
void  or  null  one,  and  said,  that  there  could  be  no  commission  to  commit 
treason,  but  what  must  be  so  :  to  which  they  had  nothing  to  reply,  only 
Dr.  Oldys  pretended  to  quote  a  precedent,  which  he  said  came  up  to  the 
present  case,  about  Antonio  king  of  Portugal,  who,  as  he  said,  after  he 
had  lost  his  kingdom,  gave  commissions  to  privateers  to  seize  upon  all 
Spanish  vessels,  whom,  as  the  Spaniards  met  with,  they  hanged  as  pyrates ; 
(so  far  his  precedent  is  against  him ;)  but  an  author  (without  naming 


EIGHT     OE     JURISDICTION.  297 

him)  was  of  opinion,  as  he  said,  That  if  Antonio  had  ever  been  a  rightful 
king,  that  then  the  Spaniards  ought  not  to  have  treated  those  who  acted 
*by  his  commission,  as  pyrates.     This  was  all  that  was  said  by  p,. , ~ ,-, 
the  Doctor  in  behalf  of  the  late  king's  privateers ;  upon  which  I  L 
must  beg  leave  to  make  a  few  reflections. 

"  As  to  those  privileges  which  were  allowed  the  late  King  in  Ireland, 
they  were  not  allowed  him  upon  the  account  of  any  right,  nor  was  it  an 
owning  that  he   had  any  right  to  that  kingdom,  but  barely  as  he  was  in 
possession  ;  for  then  he  had  Rempublicam  Curiam,  &c.,  and  consequently 
a  right  to  be  treated  as  an  enemy ;  and  not  only  he,  but  whoever  had 
been  in  possession  would  have  a  right  to  have  been  used  after  the  same 
manner ;  and  is  no  more  than  what  is  practised  in  all  civil  wars,  where 
there  are  just  forces  on  either  side.     These  privileges  being  allowed  him 
when  he  was  a  public  person,  and  in  possession  of  a  kingdom,  could  be 
no  just  reason  to  induce  any  to  imagine,  that  they  would  be  permitted 
him  when  he  was  reduced  to  a  private  condition  ;  much  less  is  it  such  a 
presumption  as  is  sufficient  to  excuse  them,  who  acted  by  his  commission, 
from  suffering  as  pyrates.     The  very  accepting  a  commission  from  him, 
after  he  was  reduced  to  a  private  condition,   to  act  against  their  own 
nation,  was  a  demonstration  that  the  government  was  no  longer  in  his, 
but  other  hands,  who  could  not  reasonably  be  presumed  would  allow  that 
he  had  still  any  right,  or  they  that  acted  by  his  commission  should  be 
dealt  with,  as  if  he  still  had  a  right ;  but  that  they  should  be  used,  as 
if  they  acted  by  no  commission,  or  what  is  all  one,  a  null  or  invalid  one. 
Their  pretending  to  believe  he  has  still  a  right,  is  no  more  an  excuse  in 
the  case  of  pyracy,  than  of  treason,  which  every  traytor  may  pretend  to. 
"  As  to  the  story  of  Antonio,   the  Doctor  is  (to  suppose  no  worse) 
abominably  mistaken  in  the  very  foundation ;  for  they  that  suffered  by 
the  Spaniards  as  pyrates,  were  French,  who  had  not  their  commissions 
from  Antonio,  but  from  their  own  king,  as  Albericus    Grentilis,  who 
mentions  this  story,  Lib.  I.  cap.  4,  says,  At  ipsa  Historia  vincat  eos  non 
fuisse  Piratas,  per  literas  quas  Regis  sui  *ostendebant}  cui  Regi  r^ne-i 
serviebant,  non  Antonio,  etsi  maxime  pro  Antonio,  quod  illos  non  L 
tangebat.     And  Conestaggius,  who  is  the  historian  he  refers  to,  and  who 
has  given  an  excellent  account  of  that  war,  says  it  was  the  royal  navy  of 
France  (which  is  very  improbable  did  act  by  any  authority  but  that  of 
the  French  king's)  set  out,  as  he  words  it,  Regiis  sub  Auspiciis,  with 
which  the  Spanish  fleet  engaged,  and  had  the  good  fortune,  after  a  long 
and  bloody  fight,  to  rout  it,  and  took  about  five  hundred  prisoners,  of 
which  almost  the  fifth  part  were  persons  of  quality,  whom  the  Spanish 
admiral  was  resolved  to  sacrifice  as  pyrates,  because  the  French  king, 
without  declaring  war,  had  sent   them  to  the  assistance  of  Antonio  : 
against  which   proceedings   the  officers  of  the  Spanish  fleet  murmured, 
and  represented  to  their   admiral,  that  they  were  not  pyrates,  because 
they  had  the  French  king's  commission;  but  what  they  chiefly  insisted 
on,  was  the  ill  consequence  it  would  be  to  themselves,  who,  if  they  fell 
into  the  hands  of  the  French,  must  expect  the  same  usage.     As  to  the 
French  king's  assisting  Antonio  without  declaring  war,  they  supposed, 
that  before  the  sea  fight,  the  two  Crowns  might  be  said  to  be  in  a  state 
AUGUST,  1854.— 20 


298  PHILLIMORE    ON    INTERNATIONAL    LAW. 

of  war,  by  reason  of  frequent  enagagements  they  had  in  the  Low 
Countries.  This  is  the  account  Conestaggius  gives  of  it,  which,  how 
little  it  is  to  the  purpose  the  Doctor  quoted  it  for,  is  so  visible,  that  there 
is  no  need  of  any  words  to  show  it.  But  granting  (as  the  Doctor  sup- 
poseth)  that  Antonio  never  had  any  right,  or,  at  least,  the  Spaniards 
would  never  allow  he  had  any,  yet  it  is  evident  from  the  historian,  that 
they  allowed  him,  during  possession,  the  same  privileges  as  the  late  King 
had  during  the  war  in  Ireland  :  and  if  the  Spaniards,  by  the  law  of 
nations,  after  Antonio  was  driven  from  his  kingdom,  might  treat  those 
that  acted  by  his  commission  as  pyrates,  why  may  not  the  English  deal 
after  the  same  manner,  with  those  that  act  by  the  late  King's  commission, 
since  they  look  on  him  to  be  in  the  same  condition  as  the  Spaniards  did 
r*j.OR1  on  Antonio,  without  a  kingdom,  or  right  *to  one  ?  What  differ- 
-«  ence  can  this  make,  that  one  had  never  a  right,  and  the  other 
tho'  he  had  once  a  right,  has  lost  it  ? 

"  These  two  civilians,  I  believe,  are  the  only  persons,  pretending  to  be 
lawyers,  who  are  of  opinion,  that  a  king  without  a  kingdom,  or  right  to 
one,  has,  by  the  Law  of  Nations,  a  right  to  grant  commissions  to  pri- 
vateers, especially  if  they  are  subjects  (as  they  have  acknowledged  it)  to 
that  king,  against  whom  they,  by  their  commissions,  are  to  act." (a) 

This  account  is  certainly  tinged  by  the  reporter's  hatred  of  Jacobites, 
and  very  probably  the  arguments  of  Pinfold  and  Oldys  are  not  fully  re- 
ported ;  but  after  every  deduction  has  been  made  in  their  favour,  the 
reason  of  the  thing  must  be  allowed  to  preponderate  greatly  towards  the 
position  of  Tindal,  that  these  Privateers  were  jure  gentium  Pirates. 


[*407]  "CHAPTER   XXI. 

RENVOI. — EXTRADITION. 

CCCLX.  The  subject  of  this  Chapter  seems  to  require  a  three-fold 
division ;  for  we  have  to  consider  : 

1.  The  Right  of  a  State  to  dismiss  foreigners  commorant  in  her  terri- 
tories— sometimes  called  the  right  of  Renvoi. 

2.  The  Obligation  of  a  State,  under  the  general  law,  to  surrender 
foreign  subjects — or  the  Law  of  Extradition. 

3.  The  Obligation  of  a  State  to  surrender  foreign  subjects,  in  com- 
pliance with  the  provisions  of  Treaties  of  Extradition. 

CCCLXI.  Every  State  is  held  to  lie  under  an  obligation  to  take 
charge  of  its  natural  subjects ;  it  cannot  therefore  refuse  to  receive  back 
citizens  who  have  migrated  in  quest  of  food  or  employment  into  foreign 
countries.  Correspondent  with  this  obligation  on  the  part  of  the  State 
of  the  citizen,  is  the  right  of  the  State,  into  which  he  has  migrated,  to 
send  the  foreign  citizen  back  to  his  own  home. 

(a)  Tindal's  Essay,  pp.  43.  8. 


EXTRADITION.  299 

This  right  is  usually  known  in  Law  by  the  term  Droit  du  Renvoi.(a} 
At  the  same  time  it  must  be  observed,  that  it  ceases,  where  the  citizen 
has  been  naturalized  by  express  law,  *in  the  foreign  country.  r^jAo-i 
And  the  right  can  hardly  be  held  to  exist  where  the  naturaliza-  L 
tion  has  been  effected  by  tacit  permission.  Martens  thinks  it  would  be 
desirable  to  define,  by  the  terms  of  a  positive  treaty  negotiated  with 
every  country,  the  case,  in  which,  the  tie  between  the  citizen  and  his 
native  Government  shall  be  held  to  be  so  severed,  as  to  destroy  the  obli- 
gation of  receiving  him  again;  and  he  observes,  that  the  Law  does  not 
consider  the  character  of  the  native  subject,  in  this  sense  and  for  this 
purpose,  as  indelible. 

This  suggestion  of  Martens  is  founded  upon  the  practice  of  many  of 
the  German  States,  who  appear  also  to  have  considered  the  question  with 
respect  to  the  transmission,  through  intermediate  States,  of  persons  from 
the  country  in  which  they  have  been  sojourning  to  the  country  of  their 
birth.(i) 

CCCLXII.  The  right  of  a  State  to  dismiss  foreigners  from  its  terri- 
tories having  been  discussed,  the  obligation  of  a  State  to  deliver  up  or 
surrender  the  subject  of  a  foreign  State  on  the  demand  of  that  State,  is 
next  to  be  considered,  (c) 

"With  respect  to  citizens,  not  being  fugitives  from  justice,  but  who  are 
needed  for  the  exigences  of  their  original  country,  *it  has  been  r#jAQ-i 
already  stated  that  International  Law  affords  no  pretext  for  their  •- 
delivery. 

"With  respect  to  fugitives  from  justice,  the  doctrine  of  the  Roman  Law 
was  explicit  on  this  point,  ordering  that  every  criminal  should  be  remitted 
to  his  forum  criminis:  but  the  reason  is  given  by  Paul  Voet: — 

"Jure  tamen  civili  notandum,  remissionibus  locum  fuisse  de  necessi- 
tate, ut  reus  ad  locum  ubi  deliquit,  sic  petente  judice,  fuerit  mittendus, 
quod  omnes  j-udices  uni  subessent  imperatori.  Et  omnes  provinciee 

(a)  Kent's  Comment,  vol.  i.  p.  36,  and  note. 

Sir  L.  Jenkins,  speaking  of  the  demand  made  by  the  French  crown  on  behalf  of 
a  French  subject,  charged  in  an  English  port  with  having  committed  piracy  on  the 
high  seas,  says,  "  The  matter  of  Renvoy  being  a  thing  quite  disused  among  princes, 
and  as  every  man  by  the  usage  of  our  European  nations  is  justiciable  in  the  place 
where  the  crime  is  committed,  so  are  pyrates,  being  reputed  out  of  the  protection 
of  all  laws  and  privileges,  and  to  be  tried  in  what  ports  soever  they  are  taken.-'' — 
Vol.  ii.  p.  714. 

Martens,  1.  iii.  c.  iii.  s.  91. 

(b)  Martens,  1.  iii.  c.  iii.  s.  91. 

"  En  effet,  le  gouvernement  de  chaque  etat  a  toujours  le  droit  de  contraindre  les 
etrangers  qui  se  trouvent  sur  son  territoire  a  en  sortir,  en  les  faisant  conduire  jus- 
qu'aux  frontieres.  Ce  droit  est  fonde  sur  ce  que  I'e'tranger  ne  faisant  pas  partie 
de  la  nation,  sa  reception  individuelle  sur  le  territoire  est  de  pure  faculte",  de  simple 
tolerance,  et  nullement  d'obligation.  L'exercice  de  ce  droit  peut  etre  soumis,  sans 
doute,  a  certaines  formes  par  les  lois  interieures  de  chaque  pays  ;  mais  le  droit  n'en 
existe  pas  moins,  universellement  reconnu  et  pratique.  En  France,  aucune  forme 
spe"ciale  n'est  prescrite  aujourd'hui  en  cette  matiere ;  1'exercice  de  ce  droit  d'ex- 
pulsion  est  totalement  abandonne  au  pouvoir  executif." — Ortolan,  Diplom.  de  la 
Mer,  1.  ii.  c.  xiv.  p.  323. 

(c)  Dissertatio  de  Deditioue  Profugorum  :  Henricus  prov6  Kluit,  Utrecht,  1829. 
The  Law  of  Extradition,  by  Charles  Egan  ;  London,  1846. 

1  Kent's  Comment,  36,  note. 
Ortolan,  Dipl.  de  la  Mer,  1.  i.  c.  xiv. 


300  PHILLIMORE     ON    INTERNATIONAL    LAW. 

Komanae  unitse  essent  accessorie,  non  principaliter."(c?)  ..... 
"Moribus  nihilominus  (non  tamen  Saxonices)  totiusfere  Christianismi, 
nisi  ex  Immanitate,  non  sunt  admissso  remissiones,  quo  casu,  remittenti 
magistratui  cavendum  per  litteras  reversoriales,  ne  actus  jurisdictioni  re- 
mittentis  ullum  pariat  prsejudicium.  Id  quod  etiam  in  nostris  Provinces 
Unitis  est  receptum.  Neque  enim  Provinciae  Fosderatas  uni  supremo 
parent."  (e) 

CCCLXIII.  Though  the  reason  for  this  remission  of  criminals  arose 
from  the  peculiar  condition  of  universality  incident  to  the  Roman  Empire, 
there  is  not  wanting  the  authority  of  great  jurists(/)  to  support  as  maxims 
fHI  01  °^  *Internati°nal  Law,  both  the  following  propositions  upon  this 
«-  J  question  of  Extradition  :  — 

1.  That  States  are  under  an  obligation  to  refuse  an  asylum  to  fugitive 
criminals; 

2.  That  they  are  bound,  if  satisfied  by  examination  of  the  prima  facie 
guilt  of  the  fugitive,  to  surrender  him  for  trial  to  the  country  in  which 
he  committed  the  crime. 

CCCLXIV.  Nevertheless,  the  usage  of  nations  has  not  accepted  these 
propositions;  nor  is  the  opposite  view  without  the  support  of  eminent 
jurists,  such  as  Puflendorf,(#)  John  Voet,(A)  Martens,  (t)  and  others.  (&) 


(d) 
Id. 


P.  Voet,  De  Stat.  s.  xi.  c.  i.  p.  297  (ed.  1715). 

Id.  p.  358. 

(e)  Ib.  s.  zi.  c.  i.  n.  6.  p.  297  (ed  1715). 

Id.  p.  358  (ed.  1661). 

(/)  Grotius,  1.  ii.  c.  xxi.  s.  3,  4,  5  :  "  Veniamus  ad  qusestionem  alteram  de  receptu 
adversus  poenas.  Poenas  ut,  ante  diximus,  naturaliter  cuivis  cui  nihil  simile  objici 
potest  exigere  licet.  Institutis  civitatibus  id  quidem  convenit,  ut  singulorum  delicta, 
quae  ipsorum  caetum  proprie  spectant,  ipsis  ipsarumque  rectoribus  pro  arbitrio  pu- 
nienda  aut  dissimulanda  relinquerentur. 

"  At  non  etiam  jus  lam  plenum  illis  concessum  est  in  delictis,  quae  ad  societatem 
humanam  aliquo  modo  pertinent,  quae  persequi  ita  civitatibus  aliis  earumve  recto- 
ribus jus  est,  quomodo  in  civitatibus  singulis  de  quibusdam  delictis  actio  datur 
popularis  :  multoque  minus  illud  plenum  arbitrium  habent  in  delictis,  quibus  alia 
civitas  aut  ejus  rector  peculiariter  Isesus  est  et  quo  proinde  nomine  ille  illave  ob 
dignitatem  aut  securitatem  suam  jus  habent  posnae  exigendae,  secundum  ea  quae 
ante  diximus.  Hoc  ergo  jus  civitas,  apud  quam  nocens  degit,  ejusve  rector  impe- 
dire  non  debet. 

"  Cum  vero  non  soleant  civitates  permittere  ut  civitas  altera  armata  intra  fines 
suos  pcenae  expetendae  nomine  veniat,  neque  id  expediat,  sequitur  ut  civitas,  apud 
quam  degit  qui  culpae  est  compertus,  alterum  facere  debeat,  aut  ut  ipsa  interpellata 
pro  merito  puniat  nocentem,  aut  ut  eum  permittat  arbitrio  interpellantis  ;  hoc  enim 
illud  est  dedere,  quod  in  historiis  saspissime  occurrit  .....  Neque  obstant 
ilia  adeo  praedicata  supplicum  jura  et  asylorum  exempla.  Haec  enim  illis  prosunt 
qui  immerito  odio  laborant,  non  qui  commiserunt  quod  societati  hurnanas  aut  ho- 
minibus  aliis  sit  injuriosum." 

Rutherforth  follows  Grotius's  opinion,  1.  n.  c.  ix.  s.  12.  So  also  Heineccius  in  his 
Prselectiones. 

Vattel,  1.  ii.  c.  vii.  pp.  75-6-7. 

Burlamaqui,  pt.  iv.  c.  iii.  s.  23  —  29. 

f  g}  Puffendorf,  1.  viii.  c.  iii.  s.  23-4. 

(h)  Voet,  De  Statutis,  297.     So  too  Kltiber,  t.  i.  c.  ii.  s.  66. 

(t)  Martens,  1.  iii.  ch.  iii.  s.  101.  De  1'Extradition  d'un  Criminel. 

Story,  Conflict  of  Laws,  ss.  626,  627,  628.  pp.  878-9-80. 

As  to  the  opinion  of  American  lawyers,  most  of  the  reasoning  on  each  side  will 
be  found  very  fully  collected  in  the  case  of  The  matter  of  Washburn,  4  John.  Ch. 
(k)  See  note  (k)  on  next  page. 


EXTRADITION.  301 

France,  Russia,  England  and  the  North  American  United  States,  have 
constantly,  either  by  diplomatic  acts  or  decisions  *of  their  tri- 
bunals,  expressed  their  opinion,  that  upon  principles  of  Inter- 
national  Law,  irrespective  of  Treaty,  the  surrender  of  a  foreign  criminal 
cannot  be  demanded. (?) 

Mr.  Chancellor  Kent,  however,  expresses  himself  very  strongly  upon 
this  subject;  and,  according  to  him,  "It  is  the  duty  of  government  to 
surrender  up  fugitives  on  demand,  after  the  civil  magistrate  shall  have 
ascertained  the  existence  of  reasonable  ground  for  the  charge,  and  suffi- 
cient to  put  the  accused  on  his  trial.  For  the  guilty  party  cannot  be 
tried  and  punished  by  any  other  jurisdiction  than  the  one  whose  laws 
have  been  violated;  therefore  the  duty  of  surrendering  him  applies  as 
well  to  the  case  of  the  subjects  of  the  State  surrendering,  as  to  the  case 
of  the  subjects  of  the  power  demanding  the  fugitive  ;"(m)  and  it  must  be 
admitted  that  the  English  courts,  even  before  the  Treaties  and  Statutes 
hereinafter  mentioned,  appear  to  have  held  the  doctrine  that  International 
Comity  was  sufficiently  stringent  to  compel  the  surrender  of  the  criminal. 
In  the  29th  year  of  Charles  II.,  we  find  the  following  decision  in  the 
King  v.  Hutchinson:  "On  Habeas  Corpus  it  appeared  the  defendant 
was  committed  to  *Newgate  on  suspicion  of  murder  in  Portugal, 
which  by  Mr.  Attorney,  being  a  fact  out  of  the  King's  dominions, 
is  not  triable  by  commission,  upon  35  Hen.  VIII.  c.  2,  §  1.  n.  2,  but 
by  a  Constable  and  Marshal;  and  the  Court  refused  to  bail  him,"  &c.(») 

In  1749,  the  Barons  of  the  Exchequer  said:  "The  Government  may 
send  persons  to  answer  for  a  crime  wherever  committed,  that  he  may  not 
involve  his  country;  and  to  prevent  reprisals."  (o) 

In  1811,  Mr.  Justice  Heath,  sitting  in  the  Common  Pleas,  observed, 
"It  has  generally  been  understood,  that  wheresoever  a  crime  has  been 

R.  106 ;  that  of  Commonwealth  v.  Deacon,  10  Serg.  &  Rawl.  123;  Holmes  v.  Jen- 
nison,  14  Peters's  R.  540—598 ;  and  that  of  Rex  v.  Ball,  1  Amer.  Jurist,  297.  The 
latter  case  is  the  decision  of  Mr.  Chief-Justice  Reid  of  Canada.  See  also  1  Amer. 
State  Papers,  175  ;  Commonwealth  v.  De  Longchamps,  1  Dall.  Ill,  115  ;  U.  States 
v.  Davis,  2  Sumner  R.  482.  486. 

1  Kent,  Comment,  pp.  35 — 38. 

Merlin,  Questions  du  Droit,  tit.  ETRANGER ;  Repert.  du  Droit,  tit.  SOITVERAINETE  . 

(A)  "  Profecto  populum  cogere  ut  hunc  illumve  prehendat  nobisque  remittat, 
nihil  aliud  est,  nisi  ilium  cogere,  ut  faciat  aliquid,  ad  quod  jure  obstringi  non  potest. 

"  Si  quaeritur,  quid  peragatur  a  civitate,  quae  consentit  in  deditionem  profugi, 
respondemus  earn  tantum  alteri  auxilium  ferre  in  exercitio  juris,  quod  in  profugum 
habet.  Auxilium  ferre  est  actus  benevolentise  et  comitatis,  ad  quern  prsestandum 
nemo  perfecte  est  obligatus." — Kluit,  de  Deditione  Profugorum,  c.  i.  s.  1. 

Tittman,  in  Strafrechtspf.  p.  27:  "Wenn  dass  dieser  Person  schuldgegebene 
Verbrechen  mehr  aus  einer  Verletzung  des  politischen  Systemes,  als  des  Rechtes 
jenes  Staates  besteht,  denn  in  solchen  Fallen  ist  das  Strafrecht  an  sich  selbst  noch 
zweifelhaft."— Ib.  c.  ii.  s.  10.  p.  81,  note. 

(1)  Kluit,  de  Deditione  Profugorum,  c.  iv.  ss.  1  &  3. 

Heffters,  1.  i.  Ixiii.  p.  119.  Recht  der  Auslieferungen. 

Fselix,  1.  ii.  t.  ix.  c.  7. 

Coke's  Institutes,  iii.  180. 

(m)  1  Kent's  Commentaries,  p.  37.  But  see  Story  on  the  Constitution  of  the  United 
States,  s.  1808,  and  note  2  thereon;  Story  on  the  Conflict  of  Laws,  s.  628,  and 
Coke's  3d  Inst.  380. 

(n}  3  Keble's  Rep.  785. 

(o)  East  India  Company  v.  Campbell,  1  Vezey's  (Sen.)  Rep.  247. 


802  PHILLIMORE    ON    INTERNATIONAL    LAW. 

committed;  the  criminal  is  punishable  according  to  the  lex  loci  of  the 
country,  against  the  law  of  which  the  crime  was  committed;  and  by  the 
comity  of  nations,  the  country  in  which  the  criminal  has  been  found, 
has  aided  the  police  of  the  country,  against  which  the  crime  was  com- 
mitted, in  bringing  the  criminal  to  punishment.  In  Lord  Loughborough's 
time,  the  crew  of  a  Dutch  ship  mastered  the  vessel,  and  ran  away  with 
her,  and  brought  her  into  Deal,  and  it  was  a  question  whether  we  could 
seize  them,  and  send  them  to  Holland;  and  it  was  held  we  rnight."^p) 

When  the  Scotch  demanded  the  Extradition  of  Bothwell,  Queen  Eliza- 
beth promised  either  to  surrender  him  or  send  him  out  of  her  kingdom. 

It  is  well  known  that  Charles  II.  pursued  the  murderers  of  his  father 
with  unrelenting  severity.  He  entered  into  a  Treaty  with  Denmark 
r*113T  (February  13,  1660),  by  the  5th  *article  of  which  the  Extradi- 
-I  tion  of  any  of  the  regicides,  who  might  take  shelter  in  that  coun- 
try, was  stipulated  for,  and  three  of  the  regicides,  who  had  fled  to  Holland, 
were  surrendered  to  him  by  De  Witt,  at  that  time  Grand  Pensioner. 
Napper  Tandy,  and  some  of  his  comrades  concerned  in  the  Irish  rebellion 
of  1795-8,  were  arrested  in  Hamburg,  and  delivered  up  to  the  English 
authorities,  an  act  which  was  greatly  resented  by  Buonaparte. (3) 

There  are  two  circumstances  to  be  observed,  which  occur  in  these  and 
in  all  other  cases  of  Extradition  : — 

1.  That  the  country  demanding  the  criminal  must  be  the  country  in 
which  the  crime  is  committed  ; 

2.  That  the  act  done,  on  account  of  which  his  Extradition  is  demanded, 
must  be  considered  as  a  crime  by  both  States. 

It  may  be  further  remarked, (r)  that  the  obligation  to  deliver  up  native 
subjects  would  now  be  denied  by  all  States,  even  by  those  which  carry 
the  general  doctrine  of  Extradition  as  to  criminals  to  the  farthest  limit ; 
and  that  it  is  generally  admitted  that  Extradition  should  not  be  granted 
in  the  case  of  political  offenders,  but  only  in  the  case  of  individuals  who 
have  committed  crimes  against  the  Laws  of  Nature,  the  laws  which  all 
nations  regard  as  the  foundation  of  public  and  private  security. (s) 

The  result  of  the  whole  consideration  of  this  subject  is,  that  the  Ex- 

(p)  Mure  v.  Kaye,  4  Taunton's  Rep.  43. 

As  to  the  power  of  transmitting  criminals  from  England,  in  which  country  they 
were  apprehended,  to  Ireland,  in  which  country  they  had  committed  the  offence, 
see  case  of  Lundy,  2  Ventris's  Rep.  p.  314,  Case  in  the  2d  year  of  Will,  and  Mary  ; 
and  King  v.  Kimberley,  2  Strange's  Rep.  848,  Case  in  the  3d  year  of  Geo.  II. 

(q)  Martens's  Erzahlungen  merkwiirdiger  Falle  des  neueren  Europ.  Volkerrechts , 
ii.  282. 

Case  of  James  Napper  Tandy  and  another,  Howell's  State  Trials,  Vol.  xxvii.  p. 
1191. 

(r)  Many  states  are  by  the  positive  laws  of  their  own  constitution  prevented  from 
delivering  up  citizens  to  foreign  powers,  e.g.  Prussia,  Bavaria,  Wurtemburg,  Baden, 
Hesse,  Oldenburgh,  Brunswick,  and  Altenburg. 

Vide  Heffters,  ubi  supra. 

Fcelix. 

Saalfeld,  s.  40. 

Kliiber,  t.  i.  c.  ii.  s.  63. 

(5)  Vattel,  1.  i.  s.  233. 

Fselix,  ubi  supra. 


EXTRADITION.  303 

tradition  of  criminals  is  a  matter  of  Comity,  not  of  Right,  except  in  cases 
of  special  convention. 

*CCCLXV.  It  may  happen  that  two  nations  make  a  request  r  ,41 4-1 
(reclamation}  for  the  delivery  of  the  same  offender.  The  only  L 
course  which  the  State  harbouring  the  offender  is  obliged  to  pursue,  in 
such  a  case,  is,  not  to  show  partiality  to  either  requesting  State.  Ac- 
cording to  Martens,  the  request  of  the  State  which  claims  the  offender 
as  attached  to  her  service,  e.  g.  as  an  officer,  or  a  public  functionary,  is 
preferable  to  the  request  of  the  country  against  which,  or  more  especially 
in  which,  the  crime  has  been  committed ;  while,  on  the  other  hand,  the 
request  of  the  latter  State  is  preferable  to  that  of  the  State  which  claims 
the  offender  merely  as  an  individual  subject.  It  is  hardly  necessary  to 
discuss  this  nice  point  of  ^International  casuistry,  as  it  is  clear  that  the 
wisest  conduct  which  a  State  can  adopt  is  to  refuse  the  request  of  both 
applicants.  (£) 

CCCLXVI.  The  right  of  a  State  to  demand  that  rebellious  subjects 
*shall  not  be  allowed  to  plot  against  it  in  the  territory  of  another  -j, .  1  _.. 
State,  has  been  already  discussed  ;(u)  it  cannot,  when  stretched  L 
to  its  utmost  limit,  be  extended  beyond  the  point  of  requiring  the  foreign 
State  to  send  the  fugitive  in  safety  elsewhere ;  and  this  demand  can  only 
be  legally  made,  when  the  State  has  confessed  or  demonstrated  its  ina- 
bility to  restrain  the  fugitive,  from  carrying  on  plots  against  the  country, 
from  which  he  has  fled. 

This  very  important  subject  recently  underwent  a  memorable  discus- 
sion in  the  House  of  Peers.  In  a  debate  which  arose  upon  the  question 
of  foreign  refugees,  most  of  the  Lords,  who  were  either  then  discharging, 
or  who  had  discharged  judicial  functions  in  the  highest  tribunals  of  the 
realm,  delivered  their  opinions  upon  this  nice  question  of  International 
Law. 


(t]  Edinburgh  Review,  No.  Ixxxiii.  pp.  129.  139.  141. 

In  the  case  of  the  Creole,  all  the  judicial  authorities  in  the  Hoase  of  Lords  ex- 
pressed the  same  opinion.  February,  1842,  Hans.  Parl.  Deb. 

Cases  in  the  American  courts  : — 

In  the  matter  of  Washburn,  4  Johnson's  Chancery  Reports,  106. 

Commonwealth  v.  Deacon,  10  Serg.  &  Rawl.  123. 

Rex  v.  Ball,  American  Jurist,  297. 

United  States  v.  Davis,  2  Sumner's  Rep.  486.    Judge  Story's  decision. 

Holmes  v.  Jenison,  14  Peters's  Reports,  540. 

Ex  parte  Holmes,  12  Vermont's  Rep.  630. 

Case  of  Jose  Ferreire  Jos  Santos,  2  Brockenbrough's  Reports,  492. 

The  result  of  these  cases  (for  a  reference  to  which  I  am  indebted  to  a  note  in 
Mr.  Chancellor  Kent's  Commentaries,  vol.  i.  pp.  36,  37,)  seems  to  be,  that  the  con- 
stitution of  the  United  States  confers  no  authority  on  their  public  officers  or  courts 
to  deliver  up  a  fugitive  criminal. 

See  too,  Opinions  of  the  (American)  Attorneys-General,  vol.  i.  pp.  384, 392,  affirm- 
ing the  same  proposition,  and  correcting  a  former  opinion  (vol.  i.  p.  46.) ;  Story's 
Comment,  on  the  Constitution,  vol.  iii.  pp.  675,  676  ;  On  the  Conflict  of  Laws,  s. 
626,  627;  also  Commonwealth  v.  De  Longchamps,  1  Dallas,  111,  115. 

"  Differend  survenu  en  1747,  entre  la  Cour  de  Suede  et  celle  de  la  Grande  Bre- 
tagne  au  sujet  de  1'extradition  d'un  negotiant  nomme*  Springer,  accuse  de  haute 
trahison  et  refugie  dans  I'h6tel  du  ministre  d'Angleterre." — Martens,  Causes  Cele- 
bres,  Dixieme  Cause.  Vide  post,  AMBASSADORS. 

(«)  See  Chapter  X.  pp.  227—233. 


804        PIIILLIMORE     ON     INTERNATIONAL     LAW. 

Lord  Lyndhurst  introduced  the  subject  by  referring  to  the  great  irrita- 
tion which  prevailed  at  Vienna,  and  throughout  the  Austrian  dominions, 
with  respect  to  the  alleged  conduct,  in  London,  of  certain  refugees  from 
the  Lombardic  dominions  of  Austria.  It  will  be  very  difficult  to  abridge 
without  injuring  the  clear  exposition  both  of  our  National  and  Interna- 
tional Law  laid  down  by  that  eminent  and  learned  nobleman.  He  stated 
that  Law,  with  respect  both  to  British  subjects  and  to  foreign  refugees, 
in  these  words : 

"I  will  first  take  the  case  of  a  British  subject.  If  a  number  of  British 
subjects  were  to  combine  and  conspire  together  to  excite  revolt  among 
the  inhabitants  of  a  friendly  State — of  a  State  united  in  alliance  with  us 
— and  these  persons,  in  pursuance  of  that  conspiracy,  were  to  issue  mani- 
festoes and  proclamations  for  the  purpose  of  carrying  that  object  into 
effect ;  above  all,  if  they  ivere  to  subscribe  money  for  the  purpose  of 
purchasing  arms  to  give  effect  to  that  intended  enterprise,  I  conceive,  and 
I  state  with  confidence,  that  such  persons  would  be  guilty  of  a  mis- 
demeanor, and  liable  to  suffer  punishment  by  the  laws  of  this  country, 
r*dlfii  inasmuch  as  their  conduct  would  tend  to  embroil  *the  two  coun- 
•>  tries  together,  to  lead  to  remonstrances  by  the  one  with  the  other 
and  ultimately,  it  might  be,  to  war.  I  think  my  noble  and  learned 
friends  who  are  now  assembled  here,  and  who  perform  so  important  a 
part  in  the  deliberation  of  this  House,  will  not  dissent  from  the  opinion 
I  state  with  respect  to  British  subjects.  Now  with  respect  to  foreigners. 
Foreigners  residing  in  this  country,  as  long  as  they  reside  here  under 
the  protection  of  this  country,  are  considered  in  the  light  of  British  sub- 
jects, or  rather  subjects  of  Her  Majesty,  and  are  punishable  by  the  crimi- 
nal law  precisely  in  the  same  manner,  to  the  same  extent,  and  under  the 
same  conditions,  as  natural-born  subjects  of  Her  Majesty.  In  cases  of 
this  kind,  persons  coming  as  refugees  from  a  foreign  State,  in  consequence 
of  political  acts  which  they  have  committed,  are  bound  by  every  princi- 
ple of  gratitude  to  conduct  themselves  with  propriety.  This  circumstance 
tends  greatly  to  aggravate  their  offence,  and  no  one  can  doubt  that  they 
are  liable  to  severe  punishment.  I  will  put  the  case  in  another  shape. 
The  offence  of  endeavouring  to  excite  revolt  against  a  neighbouring  State 
is  an  offence  against  the  Law  of  Nations.  No  writer  on  the  Law  of 
Nations  states  otherwise.  But  the  Law  of  Nations,  according  to  the  de- 
cisions of  our  greatest  judges,  is  part  of  the  Law  of  England.  I  need 
say  no  more  with  reference  to  the  nature  of  the  offence  imputed  to  those 
individuals — I  need  say  no  more  than  that  they  are  subject  to  be  punished 
by  the  laws  of  this  country  for  offences  of  this  description.  But  there 
is  a  question  connected  with  this  subject  of  considerable  difficulty,  and 
that  relates  to  the  evidence  by  which  a  party  can  be  convicted.  Here, 
I  admit,  there  is  a  very  serious  difficulty.  It  is  not  sufficient  that  the 
offence  should  be  notorious  to  the  world.  You  must  have  such  evi- 
dence to  support  the  particular  charge  as  shall  be  admissible  before  our 
tribunals."^) 

(x)  Vide  The  Times,  5th  March,  1853. 
Hansard's  Parl.  Deb.  vol.  cxxiv.  p.  1046. 


EXTRADITION.  305 

*In  the  Course  of  the  debate,  the  Prime  Minister  stated  that  r^,  „-. 
the  Government  had  resolved,  if  any  event  occurred  which  gave  L 
just  grounds  of  complaint  to  a  foreign  government  against  a  refugee  in 
this  country,  to  take  upon  themselves  the  prosecution  of  such  an  indivi- 
dual, and  not  to  throw  the  burden  of  it  upon  the  foreign  minister.  The 
principal  occasions  upon  which  such  a  course  has  been  pursued  are  the 
two  following : 

In  1799,  certain  English  subjects  were  prosecuted  for  publishing  a 
libel  upon  Paul  L,  Emperor  of  Russia.  The  Attorney-General  in  that 
case  said  that  he  had  been  commanded  to  file  an  information  in  order  to 
vindicate  the  character  of  the  Emperor  of  Russia — a  prince  in  amity 
with  this  country,  defamed  in  a  libel,  contrary  to  the  laws  aud  usual 
policy  of  nations,  which  protect  not  only  the  magistracies,  but  the  indi- 
viduals of  each  other,  from  insult  and  reproach.  Lord  Kenyon  tried 
the  case,  and,  though  Erskine  defended  the  prisoners,  the  jury  found 
them  guilty.  They  were  punished  by  fine  and  imprisonment. (#) 

In  1803,  Jean  Peltier,  a  French  refugee,  was  prosecuted  for  a  libel  on 
Napoleon  Bonaparte,  then  First  Consul  of  the  French  Republic :  Lord 
Ellenborough  tried  the  case,  and,  in  spite  of  an  extraordinary  speech 
delivered  by  Mackintosh,  the  jury  found  Peltier,  his  client,  guilty ;  but 
as  war,  soon  after  this  trial,  was  renewed  between  Great  Britain  and 
France,  the  defendant  was  never  called  upon  to  receive  judgment. (2) 

CCCLXVII.  The  delicate  question  of  the  protection  afforded  to  native 
offenders,  by  the  residence  of  persons  entitled  to  the  privilege  of  exter- 
ritoriality, will  be  considered  hereafter. 

CCCLXVIII.  We  have  now  to  consider(a)  the  principal  Treaties 
upon  the  subject  of  extradition,  which  form  an  important  part  of  Posi- 
tive International  Law  between  the  Contracting  parties,  and 
cannot  but  have,  from  their  number,  and  from  the  variety  of 
States  which  entered  into  them,  an  important  general  bearing  upon  this 
question  of  International  Jurisprudence. 

CCCLXIX.  In  France,(6)  the  matter  of  Extradition  has  been  fre- 
quently the  subject  of  domestic  legislation  and  of  treaty  with  other 
Powers. 

With  regard  to  the  former,  some  doubt  seems  to  exist  as  to  the  pre- 
sent legal  effect  of  enactments  and  provisions  made  before  the  year 
1831.(c) 

The  first  Treaty,  by  which  France  promised  and  stipulated  for  Extra- 
dition, was  concluded  between  that  country  and  Spain,  in  1765. (dj 
The  second  was  entered  into  with  the  Duchy  of  Wurtemberg,  in  the 
same  year.(e)  According  to  the  terms  of  the  latter  Treaty,  the  subjects 
of  Extradition  are  to  be  "brigands,  malfaiteurs,  voleurs,  incendiaires, 
meurtriers,  assassins,  vagabonds." 

In  1783, (/)  France  became  a  third  party  to  a  treaty  concluded  be- 

(y)  State  Trials  (Howell),  vol.  xxvii.  pp.  627 — 630. 
(z)  Ib.  vol.  xxviii.  pp.530 — 619. 

(a)  De  M.  et  De  C.  Tr.  Index,  tit.  EXTRADITION. 

(b)  Fselix,  1.  ii.  t.  ix.  c.  7.  (c)  Ib.  pp.  586,  592,  s.  612  and  note. 

(d)  It  does  not  appear  in  the  general  collections. 

(e)  Martens,  Rec.  de  Traites,  t.  i.  p.  310.  (/)  Ib.  t.  ii.  p.  612. 


306  PHILLIMORE     ON     INTERNATIONAL    LAW. 

tween  Spain  and  Portugal  in  1778  ;(#)  the  sixth  Article  which  stipu-' 
lates  for  the  mutual  Extradition  of  natives  accused  of  counterfeiting 
coin,  contrabandists,  and  deserters.  The  stipulations  with  respect  to 
deserters  were  renewed  by  the  sixteenth  Article  of  a  Treaty  between 
France  and  Spain,  made  in  1786. (A) 

By  a  Treaty  concluded  between  France  and  Switzerland  in  August 
1798  (fourteenth  Article),  and  renewed  in  September,  1803  (eighteenth 
Article),  it  is  stipulated, (t) — "  Si  les  individus  qui  seroient  declares 
juridiquement  *coupables  de  crimes  d'etat,  assassinats,  empoi- 
sonnemens,  faux  sur  des  actes  publics,  fabrication  de  fausse 
monnoye,  vols  avec  violence  ou  effraction,  ou_  qui  seroient  poursuivis 
comme  tels  en  vertu  de  mandats  decernes  par  autorite  legale,  se  refu- 
gioient  d'un  pays  dans,  1'autre,  leur  extradition)  sera  accordee  a  la  pre- 
miere requisition.  Les  choses  volees  dans  1'un  des  deux  pays,  et  depo- 
sees  dans  1'autre,  seront  fidelement  restituees,  et  chaque  etat  supportera, 
jusqu'aux  frontieres  de  son  territoire,  les  frais  d' extradition  et  de  trans- 
port. Dans  le  cas  de  delits  moins  graves,  mais  qui  peuvent  emporter 
peine  afflictive,  chacun  des  deux  etats  s'engage,  independamment  des  res- 
titutions a  operer  a  punir  lui-meme  le  delinquant;  et  la  sentence  sera 
communiquee  a  la  legation  franchise  en  Suisse,  si  c'est  un  citoyen  fran- 
§ois,  et  reciproquement  a  1'envoye  helvetique  a  Paris,  ou  a  son  defaut, 
au  land-amman  de  la  Suissee,  si  la  punition  pesoit  sur  un  citoyen  de  la 
Suisse."  And  also  the  Extradition  of  public  functionaries  or  receivers 
of  public  moneys  pursued  for  carrying  away  the  property  of  the  State. 

Stipulations  to  the  same  effect  were  inserted  in  the  Treaty  of  Amiens 
in  1802  (Article  Twenty),  between  England  and  France ;(/»;)  and  also  in 
a  treaty  between  the  same  parties  in  February,  1843. (?) 

Treaties  between  France  and  England,  in  August  1787  and  March 
1815  (Articles  Eight  and  Nine),  contain  reciprocal  stipulations  for  the 
surrender  of  persons  accused  of  offences  cognizable  in  courts  of  law 
within  their  respective  possessions  in  the  East  Indies. (m) 

In  November,  1834,  France  entered  into  a  Treaty  of  Extradition  with 
Belgium,  containing  similar  stipulations;  but  each  Government  reserved  to 
PN.90T  ^tse^  *ne  rignfc  °f  excepting  *from  the  operation  of  the  Treaty 
J  special  and  extraordinary  cases.(w)  By  this  Treaty  Belgium  is 
not  bound  to  surrender  a  French  subject  for  an  offence  committed  by 
him  in  Belgium;  and  the  same  rule  applies  to  France. (o) 

By  a  Treaty  between  France  and  Sardinia,  in  May,  1838,  it  is  stipu- 
lated that  persons  "  mis  en  accusation  ou  condamnes"  in  their  respective 

(ff)  Ib.  p.  625.  (h)  Ib.  t.  iv.  p.  187. 

(i)  Ib.  t.  vi.  p.  466 ;  t.  viii.  p.  132  ;  Art.  xviii.  Renewed  on  the  18th  of  July, 
1828,  according  to  Fselix,  585. 

tk)  Martens,  ib.  t.  vii.  p.  412.  (I)  Vide  post. 

(m)  Martens,  Rec.  de  Trait^s,  t.  iv.  pp.  280 — 285. 

(n)  Martens,  ib.  t.  xx.  (Nouv.  Rec.  t.  xii.)  Art.  ii.  p.  733  :  "  Chacun  des  deux 
gouvernemens  entend  cependant  se  re'server  le  droit  de  ne  pas  consentir  t\  1'extra- 
dition  dans  quelques  cas  spe'ciaux  et  extraordinaires  rentrant  dans  la  categoric  des 
faits  prevus  par  1'article  pr6c6dent. 

"  II  sera  donne  connaissance,  au  gouvernement  qui  reclame  1'extradition,  des 
motifs  de  refus." 

(o)  Revue  Etrangere,  t.  ix.  p.  1032. 


[*421] 


EXTRADITION.  307 

countries,  for  any  of  the  offences  specified  in  the  Treaty  with  Belgium 
which  has  been  just  mentioned,  shall  be  subject  to  Extradition.  The 
operation  of  the  Treaty  is  limited  to  French  subjects  in  Sardinia,  and  to 
Sardinian  subjects  in  France  or  Corsica. (p)  But  this  Treaty  does  not 
contain  the  reservation  specified  in  the  Treaty  with  Belgium. 

France  has  also  Treaties  of  Extradition  with  Sweden  and  Norway,  of 
December,  1843  ;(<?)  with  the  United  States  of  North  America,  of  Novem- 
ber, ]  843,  promulgated  April,  1844  ;(r)  with  the  Grand  Duchy  of  Baden, 
of  June,  1844  ;(s)  with  Luxembourg,  of  September,  1844;^)  and  with 
Bavaria,  of  March,  1846.(w) 

France  has  particular  Treaties  upon  the  subject  of  Extradition  of 
deserters,  with  Wurtemberg,  of  December,  1765 ;  *with  the 
North  American  United  States,  of  November,  1788, (v)  and  of 
June,  1823(x)  (Article  Ninth) ;  with  Sardinia,  of  June,  1782,  and  of 
August,  1820  ;(y]  with  the  Netherlands,  of  October,  1821  ;(z)  with 
Bavaria,  of  May,  1827  ;(a)  and  with  Prussia,  of  July,  1828. 

CCCLXX.  It  appears  to  be  the  usage  of  the  kingdom  of  the  Two 
Sicilies(i)  to  concede  Extradition;  but  they  have  a  positive  Treaty,  of 
July,  1818,  on  the  subject,  with  the  Pope,  for  the  surrender  of  all  de- 
linquents, with  power  for  an  armed  force  of  the  one  country  to  make 
arrests  within  the  territory  of  the  other. (c) 

The  kingdom  of  the  Two  Sicilies  has  a  Treaty,  of  May,  1819,  with 
Sardinia,(cZj  for  the  delivery  of  individuals  condemned  to  the  gallies, 
or  to  temporary  or  perpetual  labour. 

The  Papal  States  have  the  Treaty  above  mentioned  with  Sardinia. 

CCCLXXI.  Holland  has  treaties,  of  April,  1718,  and  of  December, 
1756,  with  Austria  and  France  ;(e)  with  Hanover,  of  1815  ;(/)  and  ex- 
press Treaties  for  the  surrender  of  deserters,  with  France,  of  October, 
1821 ;  with  Sweden  and  Norway,  of  May,  1827 ;  and  with  Nassau,  of 
August,  1828.  (g) 

CCCLXXIL  Sardinia  provides,  by  the  eleventh  Article  of  her  Penal 
Code,  that  no  Extradition  shall  take  place  except  under  the  authority  of 
the  king.     She  has  Treaties  *for  Extradition  of  malefactors  with  PMOQ-I 
France,  Austria,  Tuscany,  Modena,  Parma,  Placentia,  Morocco,  L 
Massa,  Carrona.^) 

(p]  See  M.  Faelix,  1.  ii.  tit.  ix.  ch.  vii.  p.  588,  who  has  the  following  note  :  "  Bul- 
letin des  Lois,  1838,  ix.  Bull.  DCXTI.  No.  7716:  Collection  de  M.  Duvergier,  1838, 
p.  734;  V.  un  cas  d' application  de  ce  Traite"  dans  la  Gazette  des  Tribunaux  du  21 
Janvier,  1843." 

This  reference  and  the  three  next  are  from  M.  Feelix : 

(q)  Collection  de  M.  Duvergier,  1843,  p.  69.  (r)  Ibid.  1844,  p.  436. 

(*)  Ibid.  1844,  p.  640.  (t)  Ibid.  1846.  («)  Martens,  t.  iv.  p.  417. 

This  reference  and  the  six  next  are  from  M.  Faelix : 

(t?)  Bull  des  Lois,  Bull.  614,  No.  15,077. 

(x)  Ib.  Bull.  425,  1820,  No.  9971. 

Martens,  Nouv.  Supplement,  t.  ii.  p.  42. 

(y)  Bull,  des  Lois,  1821,  Bull.  486,  No.  11,576. 

(z)  Ib.  1827,  Bull.  162,  No.  6054. 

Martens,  t.  vii.  p.  132. 

a)  Bull,  des  Lois,  1828.  (6)  Faelix,  p.  592. 

c)  Martens,  Nouv.  Rec.  t.  T.  p.  281.  (d)  Ib.  p.  398. 

e)  Martens,  Guide  Diplomatique,  pp.  133.  138.  and  771. 

/)  Faelix,  s.  619.  p.  593  (notis).         (g)  Martens,  Nouv.  Rec.  t.  vii.  p.  682. 

A)  Martens,  Nouv.  Rec.  t.  vii.  p,  214. 


308  PHILLIMORE    ON    INTERNATIONAL    LAW. 

CCCLXXIII.  Austria,(t)  which  incorporates  into  its  own  code  the 
power  and  obligation  of  Extradition,  has  Treaties  for  the  surrender  of 
individuals  accused  of  crimes  or  misdemeanors  (crimes  ou  delits  communs) 
with  Sardinia,  (April,  1792 ;  June,  1838)  ;(k\  with  Parma,  Placentia, 
Guarlotten  (July,  1818)  -}  with  Modena  (October,  1818  ;  1834)  ;  with  the 
Swiss  Cantons,  excepting  G-laris,  Zug,  Bale,  Appenzell,  the  Grisons, 
Geneva  (1828)  ;(l]  and  with  Tuscany  (October,  1829).(m) 

CCCLXXIV.  The  Extradition  of  persons  accused  of  high  treason  is 
stipulated  for  in  Treaties  with  Russia  and  Prussia  as  to  Polish  subjects 
(January,  1834);  with  all  the  States  of  the  G-ermanic  Confederation 
(August,  1836) ;  and  with  the  two  Sicilies.(n) 

CCCLXXV.  For  the  Extradition  of  deserters,  Austria  has  Treaties  with 
Russia  (April,  1808 ;  May,  1815  ;  July,  1822)  ;(o)  with  the  minor  Italian 
States;  with  the  Pope  (June,  1821);  with  Sardinia  (February,  1826 ; 
with  the  Germanic  Confederation  (February,  1831 ;  May,  1832). 

CCCLXXVI.  Prussia  punishes  offences  committed  by  her  subjects  in 
foreign  lands  against  her  own  laws  only;(^>)  but  has  incorporated  in  her 
cr^m^na^  c°de  the  obligation  of  *the  proper  magistrate  to  enforce 
the  Extradition  which  has  been  the  subject  of  Treaties  with 
other  nations ;  certain  precautions  being  taken,  such  as  taking  security 
for  obtaining  a  return  for  the  Act  of  Comity  granted  by  her  (reversalia 
de  olservando  reciproco}.(c[)  She  has  Treaties  of  Extradition  for  persons 
charged  with  crimes  or  misdemeanors  with  Mecklenbourg-Schwerin,  of 
February,  1811,  and  1831  ;(r]  with  Russia,  of  May,  1816,  and  March, 
1830;(s)  and  with  Belgium,  of  July,  1836.(£) 

In  1832,  1834,  and  1836,  Prussia  entered  into  Treaties  for  the  sur- 
render of  political  offenders  with  the  Germanic  Confederation,  Austria, 
and  Russia  ;(u)  in  1833  and  1837,(v)  into  Treaties  with  the  Germanic 
Confederation  for  the  surrender  of  contrabandists,  provided  that  they  were 
not  subjects  of  the  State  in  which  they  were  arrested. 

Prussia  has  stipulated  for  the  Extradition  of  deserters  with  Denmark, 
Brazil,  France,  Luxembourg,  and  the  Germanic  Confederation. (a;) 

Bavaria,  Oldenburg,  Saxe-Altenbourg,  Brunswick,  Hanover,  and  The 
Elector  of  Hesse,  have  the  same  principles,  generally  speaking,  inserted 
in  their  domestic  Codes  and  foreign  Treaties. 

CCCLXXVII.  Switzerland  has  concluded  Treaties  with  France,(y) 
Austria,(z)  and  Baden,(a)  for  the  Extradition  of  persons  accused  of  crimes 

(i)  Faelix,  pp.  592,  593,  594. 

De  Puttlingen,  Die  gesetzliche  Behandlung  der  Auslander  in  Oesterreich. 
Kluber,  Oeffentliches  Recht  des  deutschen  Bundes  und  der  Bundesstaaten,  a. 
197.  347. 

(k)  Martens,  NOUT.  Rec.  Supplement,  t.  ii.  p.  81. 
Faelix,  p.  621.  s.  594. 

'(1)  Martens,  Four.  Rec.  t.  vii.  p.  646.  (m)  Martens,  t.  XT.  p.  44. 

M  Faelix,  s.  621.  p.  594.  .    . 

(o)  Martens,  NOUT.  Recueil,  t.  iv.  p.  282  ;  t.  vi.  p.  120. 
Faelix,  s.  621.  p.  595. 

!p)  Ib.  s.  560,  p.  547.  (q)  Faelix,  s.  622.  p.  595. 

r)  Martens,  NOUT.  Rec.  t.  ix.  p.  216. 
s)  Ib.  t.  iv.  p.  293  ;  t.  viii.  p.  244.         (t)  Ib.  t.  XT.  p.  98.         («)  Ib.  t.  XT.  p.  44. 
(v)  Faelix,  s.  622.  p.  596.         (x)  Ib.  s.  622.  pp.  596,  597.        (y)  Vide  supra, 
(z)  Vide  supra.  (a)  Vide  supra. 


EXTRADITION.  309 

or  misdemeanors ;  bat  in  none  of  these  Treaties  is  any  mention  made  of 
the  surrender  of  Swiss  citizens;  and  it  is  expressly  refused  in  the  third 
Article  of  the  Treaty  with  Austria. 

*Spain  and  Portugal(i)  recognise  the  Extradition  of  persons 
charged  with  crimes  or  misdemeanors,  as  a  principle  of  Inter- 
national  Law  ;  but  have  no  other  Treaties  on  the  subject  than  that 
already  mentioned,  with  France,  of  1778  and  1783. (c) 

CCCLXXVIII.  Denmark  has  Treaties  for  the  Extradition  of  malefac- 
tors with  Brunswick,  of  May,  1732 ;  July,  1744 ;  February,  1759 ;  and 
November,  1767  ;(c?)  with  Sweden,  of  December,  1809,(e)  in  the  Ninth 
and  separate  Article  of  which  it  is  stipulated : — "  Les  devoirs  du  bon 
voisinage  imposant  aux  hautes  parties  contractantes  Tobligation  recipro- 
quement  salutaire  de  contribuer,  en  autant  qu'il  est  en  leur  pouvoir,  au 
maintien  des  loix  criminelles  des  deux  pays, — elles  sont  convenues  d'un 
article  separe  qui  sera  a  regarder  comme  s'il  etoit  insere  mot  a  mot  dans 
le  present  traite,  et  par  lequel  1'extradition  reciproque  des  malfaiteurs  et 
deserteurs  sera  stipulee  et  reglee." 

Denmark  has  a  similar  Treaty  with  Norway,  of  March,  1823, (/)  which 
contains  provisions  similar  to  those  in  the  Treaty  with  Sweden.  Den- 
mark has  Treaties,  for  the  Extradition  of  deserters,  with  Spaip,  of  July, 
1767;(</)  with  Sweden,  in  the  Treaty  already  mentioned;  with  Mecklen- 
bourg  Strelitz  and  Schwerin,  of  February  and  April,  1823  ;(A)  with  Ham- 
bourg,  of  May,  1832.  (i) 

CCCLXXIX.  Sweden  appears  to  have  only  two  Treaties  on  this  sub- 
ject : — 1.  The  Treaty  already  mentioned,  with  *Denmark ;  2.  A  r,MOKi 
Treaty  with  Russia,  of  November,  1810  ;(&)  by  the  seventh  Ar-  L  ""°J 
ticle  of  which  it  is  stipulated : — "  La  tranquillite  et  la  surete  des  pais- 
ibles  habitans  de  ces  frontieres,  etant  trop  exposees  par  la  grande  facilite 
aux  malfaiteurs  de  se  soustraire  a  leurs  justes  punitions,  en  passant  sur 
le  territoire  de  Pautre  puissance,  il  est  convenu  que  tout  meurtrier,  in- 
cendiaire,  brigand  ou  voleur  qui,  apres  avoir  commis  un  crime  dans  une 
des  paroisses  limitrophes,  s'evadera  sur  le  territoire  etranger,  sera  saisi  et 
livre  a  son  gouvernement  aussitot  que  requisition  en  aura  ete  faite ;  mais 
en  cas  que  1' accuse  soit  sujet  de  1'etat  ou  il  se  sera  refugie  apres  avoir 
commis  le  crime  sur  le  territoire  etranger,  il  sera  juge  et  puni  par  son 
propre  gouveruement,  avec  la  me  me  rigueur  que  s'il  s'etoit  rendu  coup- 
able  envers  celui-ci."  In  both  these  Treaties,  the  surrender  of  deserters 
is  conceded. 

Norway  appears  to  have  only  the  Treaty  already  mentioned,  with  Den- 
mark.^) 

CCCLXXX.  Russia  has  the  Treaties  already  mentioned,(w)  for  the 

(b)  Martens,  Nouv.  Rec.  t.  vii.  p.  646 ;  t.  ix.  p.  22. 
Fselix,  p.  605,  and  note. 

(c)  Vide  supra. 

(d)  M.  Kluit,  passim. 
Faelix,  s.  635.  p.  606. 

(e)  Martens,  Nouv.  Rocneil,  t.  i.  p.  223.  (/)  Ib.  t.  vii.  p.  14. 

(g\  Ib.  t.  i.  p.  459  (h)  Ib.  t.  vii.  pp.  5,  16.  (t)  Ib.  t.  vi.  p.  259. 

(k)  Martens,  Nouv.  Rec.  t.  i.  p.  313.  t.  iv.  p.  33.  (I)  Vide  supra. 

(m)  Ubi  supra. 


310  PHILLIMORE    ON    INTERNATIONAL    LAW. 

Extradition  of  malefactors  and  deserters,  with  Austria,  Prussia,  and 
Sweden;  for  the  Extradition  of  deserters,  with  the  kingdom  of  the  Two 
Sicilies,  of  January,  1787;(?i)  with  Portugal,  of  December,  1787,(o)  and 
December,  1798  ;(p)  with  Saxony,  of  October,  1806.(j) 

CCCLXXXI.  The  Sublime  Porte  is  accustomed  to  surrender  malefac- 
tors who  are  not  subjects;M  but  has,  only  a  short  time  before  these 
pages  were  written,  refused  to  surrender  political  criminals.  She  appears 
to  have  no  Treaty  on  the  subject  of  Extradition. 

r*42n       *CCCLXXXII.  Greece  allows  by  her  domestic  law  the  Extra- 
-1  dition  of  Turkish  subjects  for  crimes  or  misdemeanors  committed 
in  her  territory,  but  does  not  allow  Greek  subjects  to  be  surrendered  to 
Turkish  authority  for  offences  committed  in  the  Turkish  dominions.(s) 

CCCLXXXIII.  England  holds,  and  has  always  held,  as  a  general 
principle,  the' doctrine  of  refusing  to  surrender  any  persons  who  may 
have  taken  refuge  in  her  dominions.(<)  The  recent  deviations  from  this 
principle  are  bounded  by  the  letter  of  the  Treaty  which  constitutes  the 
particular  case  of  exception;  and  by  no  Treaty  has  she  departed  from 
her  rule  of  refusing  the  Extradition  of  political  refugees. (u) 

By  the  Treaty  of  Amiens,  England,  for  the  first  time,  covenanted  with 
France  for  the  Extradition  of  fugitives  charged  with  forgery,  fraudulent 
bankruptcy,  or  murder,  committed  in  their  respective  territories ;(y)  but 
this  Treaty  was  for  a  limited  period. 

England  has  also  had  at  various  times  Treaties  for  the  Extradition  of 
deserters,  with  the  German  principalities, — Hesse  Cassel(a)  (January, 
1776,  September,  1787,(y)  and  April,  1793  ;)(«)  Baden  (September, 
1793 ;)(«)  Hesse  Darmstadt(i)  (September  and  October,  1793) ;  Bruns- 
wick (November,  1794  ;)(c)  The  Elector  Palatin  (March,  1800  ;)(</) 
r M97T  Duchy  of  Wurtemburg  (April,  1800  ;)(e)  Archbishopric  of  *May- 
J  ence  (April,  1800. )(/)  But  at  present  she  has  only  two  Treaties 
of  Extradition  with  foreign  States,  one  with  France  and  another  with 
America,  both  confirmed  by  Acts  of  Parliament.^) 

The  Treaty  with  France,  on  13th  February,  1843,  provides,  that  the 
high  contracting  parties  should,  on  requisition  made  in  their  name 
through  the  medium  of  their  respective  diplomatic  agents,  deliver  up  to 

(72)  Martens,  Recueil,  t.  iv.  p.  229. 

(o)  Ib.  t.  iv.  p.  315  (Art.  xix.).  (p)  Ib.  t.  vi.  p.  537  (Art.  xix.). 

(q)  Martens,  Nouv.  Recueil,  t.  i.  p.  153.  (r)  Faelix,  s.  639.  p.  607,  and  note. 

(s)  Fffilix,  s.  640.  p.  607. 

Revenue  Etrangere,  t.  i.  p.  417. 

(t)  Vide  M.  Faelix,  s.  641.  p.  607,  and  note, 

(M)  Debate  in  the  House  of  Lords,  4th  February,  1842.  Speech  of  Lord  Brougham. 

(v)  Martens,  Recueil,  t.  vii.  p.  404  (Art.  xx.).  (x)  Ib.  t.  ii.  p.  422. 

(y)  Ib.  t.  iv.  p.  306.  (z)  Ib.  t.  v.  p.  449.  (a)  Ib.  t.  v.  p.  506. 

(b)  Ib.  t.  v.  pp.  492  and  524.         (c)  Ib.  t.  v.  p.  620.         (d)  Ib.  t.  vi.  p.  707. 

(e)  Ib.  t.  vii.  p.  47  (Art.  viii.).  (/)  Ib.  t.  vii.  p.  54,  (Art.  viii.). 

(ff)  Hertslet's  Treaties,  vol.  vi.  pp.  448-9.  "An  Act  of  the  British  Parliament 
for  giving  effect  to  a  Convention  between  Her  Majesty  and  the  King  of  the  French 
for  the  apprehension  of  certain  offenders,"  6  &  7  Viet.  c.  Ixxv.  s.  1. 

Further  provisions  for  facilitating  the  execution  of  this  act  were  given  by  8  &  9 
Viet.  c.  120. 

7  Hertslet's  Tr.  356. 

Martens,  Rec.  de  Tr.  t.  xxxiv.  p.  20. 

Ann.  Reg.  vol.  Ixxxv.  p.  470  (1843). 


EXTRADITION.  311 

justice  persons  who,  being  accused  of  the  crimes  of  murder  (comprehend- 
ing the  crimes  designated  in  the  French  penal  code  by  the  terms  assassi- 
nation, parricide,  infanticide,  and  poisoning),  or  of  an  attempt  to  commit 
murder,  or  of  forgery,  or  of  fraudulent  bankruptcy,  committed  within 
the  jurisdiction  of  the  requiring  party,  should  seek  an  asylum  or  should 
be  found  within  the  territories  of  the  other;  provided  that  this  should  be 
done  only  when  the  commission  of  the  crime  should  be  so  established, 
as  that  the  laws  of  the  country,  where  the  fugitive  or  person  so  accused 
should  be  found,  would  justify  his  apprehension  and  commitment  for 
trial,  if  the  crime  had  been  there  committed ;  and  also  provides,  that  on 
the  part  of  the  British  Government  the  surrender  should  be  made  only 
on  the  report  of  a  judge  or  magistrate  duly  authorised  to  take  cognizance 
of  the  acts  charged  against  the  fugitive  in  the  warrant  of  arrest,  or  other 
equivalent  judicial  docunrent  issued  by  a  judge  or  competent  magistrate 
in  France,  and  likewise  clearly  setting  forth  the  said  Acts;  and  also  pro- 
vides, that  the  expenses  of  *any  detention  and  surrender  made  P-MOO-I 
in  virtue  of  the  stipulations  hereinbefore  recited  should  be  borne  L 
and  defrayed  by  the  Government  in  whose  name  the  requisition  should 
have  been  made;  and  also  provides,  that  the  provisions  of  the  said  Con- 
vention should  not  apply  in  any  manner  to  crimes  of  murder,  forgery,  or 
fraudulent  bankruptcy  committed  antecedently  to  the  date  thereof;  and 
also  provides,  that  the  said  Convention  should  be  in  force  until  after  the 
First  day  of  January,  in  the  year  one  thousand  eight  hundred  and  forty- 
four,  after  which  date  either  of  the  high  contracting  parties  should  be  at 
liberty  to  give  notice  to  the  other  of  its  intention  to  put  an  end  to  it, 
and  it  should  altogether  cease  and  determine  at  the  expiration  of  six 
months  from  the  date  of  such  notice. 

This  Treaty  was  confirmed  by  the  Act  6  &  7  Yict.  c.  75,  passed  on 
22d  August,  1843. 

The  Treaty  of  Great  Britain  with  the  United  States  of  North  America, 
on  9th  August,  1842,  provides,  by  the  tenth  Article,  that  the  two  coun- 
tries should,  upon  mutual  requisitions  by  them  or  their  ministers,  officers, 
or  authorities  respectively  made,  deliver  up  to  justice  all  persons  who, 
being  charged  with  the  crime  of  murder,  or  assault  with  intent  to  com- 
mit murder,  or  piracy,  or  arson,  or  robbery,  or  forgery,  or  the  utterance 
of  forged  paper,  committed  within  the  jurisdiction  of  either  of  the  high 
contracting  parties,  should  seek  an  asylum  or  should  be  found  within 
the  territories  of  the  other:  provided  that  this  should  only  be  done  upon 
such  evidence  of  criminality  as,  according  to  the  laws  of  the  place  where 
the  fugitive  or  person  so  charged  should  be  found,  would  justify  his  ap- 
prehension and  commitment  for  trial  if  the  crime  or  offence  had  been 
there  committed,  and  that  the  respective  judges  and  other  magistrates  of 
the  two  governments  should  have  power,  jurisdiction,  and  authority,  upon 
complaint  made  under  oath,  to  issue  a  warrant  for  the  apprehension  of 
the  fugitive  or  person  so  charged,  so  that  he  might  be  brought  before 
such  judges  or  other  magistrates  respectively,  to  the  end  that  the  evidence 
of  criminality  might  be  *heard  and  considered;  and  if  on  such  r*joQ-| 
hearing  the  evidence  should  be  deemed  sufficient  to  sustain  the  "• 
charge,  it  should  be  the  duty  of  the  examining  judge  or  magistrate  to 


312  PIIILLIMORE     ON    INTERNATIONAL    LAW. 

certify  the  same  to  the  proper  executive  authority,  that  a  warrant  might 
issue  for  the  surrender  of  such  fugitive,  and  that  the  expense  of  such 
apprehension  and  delivery  should  be  borne  and  defrayed  by  the  party 
making  the  requisition  and  receiving  the  fugitive;  and  the  eleventh 
Article  provides  that  the  said  tenth  Article  shall  continue  in  force  until 
one  or  other  of  the  high  contracting  parties  shall  signify  its  wish  to  ter- 
minate it,  and  no  longer. (h\ 

This  Treaty  was  confirmed  by  the  Act  6  &  7  Viet.  c.  76,  passed  on 
22d  August,  1843;  and  both  the  Treaties  with  France  and  the  United 
States  were  further  confirmed  by  the  8  &  9  Viet.  c.  120,  which  facilitated 
their  execution. 

A  former  Treaty  on  the  same  subject  had  been  signed  between  the 
North  American  United  States  and  Great  Britain,  in  1794;  and  under 
the  twenty-seventh  Article  of  that  Treaty,  a  citizen  of  the  North  Ameri- 
can United  States,  who  had  committed  murder  within  the  jurisdiction  of 
England,  that  is,  upon  board  a  British  ship  on  the  high  seas,  was  delivered 
up  to  the  British  by  the  American  authorities,  although  it  was  strongly 
contended  that  the  article  of  the  Treaty  was  contrary  to  the  Constitution 
of  the  United  States;  that  the  Treaty  could  only  relate  to  foreigners; 
that,  the  crime  having  been  committed  on  the  high  seas,  the  Courts  of 
the  United  States  had  competent  jurisdiction;  and  that  a  grand  jury 
ought  to  make  inquest,  before  a  party  was  sent  away  for  trial.  All  these 
objections  were  overruled,  and  the  prisoner  delivered  up  to  the  British 
Consul,  (i) 

P430T      *CCCLXXXIV.  The  United  States  of  North  America  have 
J  the  aforesaid  Treaty  of  Extradition  with  England,  and  also  one 
with  France. 

In  1853,  the  Treaty  with  England  was  enforced  in  the  case  of  Thomas 
Kaine,  an  Irish  criminal  claimed  by  the  British  Consul,  at  the  port  of 
New  York,  for  the  crime  of  an  assault  with  an  intent  to  commit  murder 
within  the  British  dominions;  and  a  formal  and  careful  decision  upon 
the  effect  of  the  Treaty  was  delivered  by  the  American  Commissioner, 
who  said  that  it  was  his  duty  to  inquire,  whether  the  evidence  of  the 
guilt  of  the  person  charged  would  justify  his  commitment  for  trial,  ac- 
cording to  the  laws  in  force  in  the  State  of  New  York,  if  charged  with 
the  crime  there,  and  the  requisitions  of  those  laws  would  be  fully  com- 
plied with  by  the  production  of  evidence  from  which  the  magistrate  or 
Commissioner  might  conclude  that  the  offence  had  been  committed,  and 
that  there  was  probable  cause  to  believe  that  the  prisoner  had  been  guilty 
of  it.  In  this  case  the  criminal  was  surrendered  under  the  provisions 
of  the  Treaty. (/<;) 

(A)  Hertslet's  Treaties,  TO!,  vi.  pp.  862-3.  "  An  Act  of  the  British  Parliament 
for  giving  effect  to  a  Treaty  between  Her  Majesty  and  the  United  States  of  America, 
for  the  apprehension  of  certain  offenders,"  6  &  7  Viet.  c.  76. 

Martens,  Rec.  de  Tr.  t.  xxxiv.  p.  507. 

(i)  Robbins's  Case,  Sentence  by  Judge  Bee,  State  Trials  of  the  United  States, 
published  at  Philadelphia  (1349),  p.  393. 

United  States  v.  Nash,  Bee's  (American)  Admiralty  Reports,  266. 

(k)  The  reciprocal  Extradition  of  criminals  among  the  States  which  constitute 


EXTRADITION.  313 

CCCLXXXV.  It  appears  that,  with  respect  to  proceedings  had  in 
virtue  of  these  Treaties  and  Acts,  that  the  Applications  of  the  British 
Government  to  France  and  the  United  States  have  been  generally  suc- 
cessful, but  that  the  reverse  may  be  predicated  of  the  applications  by 
France  and  America  to  Great  Britain. (?) 

It  has  been  decided  in  England  that  no  retrospective  effect  can  be 
given  to  these  Acts  or  Treaties. 

The  only  important  decision  given  in  England  on  these  Statutes  was 
that  in  "  The  Queen  v.  Clinton,"  in  which  Mr.  Baron  Platt  observed : 
"  The  object  of  the  Act  was  to  give  effect  to  a  Treaty  for  reciprocally 
rendering  up  persons  *' being  charged'  with  forgery,  &c.,  'com- 
mitted'  within  the  jurisdiction  of  either  party,  &c.  Now,  'being 
charged/  in  his  opinion, "clearly  meant,  'being  then  charged;'  but  the 
word  'committed'  might  stand  for  'which  have  theretofore  been  com- 
mitted/ or  '  which  were  then  committed/  or  '  which  should  be  committed 
after  the  passing  of  the  Act.'  Looking  into  the  Treaty,  for  the  purpose 
of  giving  effect  to  which  this  Act  was  passed,  he  found  the  terms  were, 
such  person  as  'having  committed/  &c.,  and  'being  fugitive  from  jus- 
tice/ &c.  On  this  he  would  remark  that  it  appeared  to  him  very  doubt- 
ful whether,  under  this  Treaty,  a  merchant  committing  forgery  of  a  bill 
of  exchange  in  the  United  States  with  the  intention  of  providing  for  it 
at  maturity,  and  coming  over  here  animo  revertendi,  and  therefore  not 
a  fugitive  from  justice,  could  be  taken  and  given  up  to  the  American 
government.  'Being  fugitive'  meant  being  so  at  the  time  when  the  law 
was  to  be  put  in  force.  If  so,  then  it  would  appear  that  the  word  '  com- 
mitted' meant  committed  after  the  Treaty.  According  to  the  common 
course  of  reasoning  and  of  justice,  it  must  be  considered  that  the  Treaty 
was  meant  to  attach  only  on  those  whose  crimes  as  well  as  flight  had 
taken  place  since  the  making  of  the  Treaty.  That  must  be  the  construc- 
tion of  the  Treaty,  and  the  construction  of  the  Act  of  Parliament  must 
correspond;  for  he  considered  that  they  were  bound  to  advert  to  the 
Treaty  to  discover  the  meaning  and  intention  of  the  Act  of  Parliament; 
and  therefore  he  thought  that  the  word  'committed'  could  not  be  referred 
to  transactions  before  the  date  of  the  Treaty.  The  word  could  have  no 
other  application.  That  was  his  opinion ;  and  he  thought  he  was  bound 
to  act  upon  it,  because  it  seemed  to  him  that,  in  this  country,  laws  to  tax 
or  restrain  liberty  must  be  clear;  and  if  this  was  defective  in  expressing 
the  intention  of  the  Legislature,  it  was  for  them  to  alter  it.  His  opinion 
was  founded  on  the  Treaty;  and,  taking  that  ground,  he  thought  that  the 
Act  of  Parliament  could  only  apply  to  those  who  had  committed  the 
crime  after  the  *passing  of  it.(ra)  It  seemed  to  him,  therefore,  r^oo-i 
that  he  could  only  order  that  this  man  be  discharged.  The  pri-  L 
soner  was  then  accordingly  discharged." 

the  union  is  expressly  provided  for  by  the  constitution.  Story  on  the  Constitution, 
ss.  1807-8-9. 

(1)  Egan  on  the  Law  of  Extradition,  p.  57. 

(m)  The  Law  Times,  Nov.  1,  1845. 

Egan  on  the  Law  of  Extradition,  pp.  54,  55. 

The  Act  1  W.  IV.  c.  66,  which  applies  to  the  forging  or  uttering  in  England 
documents  purporting  to  be  made  out  of  England. 

AUGUST,  1854.— 21 


PAET     THE     FOURTH. 


[*433]  *CHAPTER    I. 

INTERVENTION. 

CCCLXXXVI.  In  all  systems  of  Private  Jurisprudence,  provision  is 
made  for  placing  upon  the  abstracting  Right  of  Individual  Property 
such  restrictions  as  the  general  safety  may  require.  The  maxim 
"  expedit  enim  reipublicse,  ne  guis  sud  re  male  utatur"  belongs  to  the 
law  of  all  countries.(a) 

The  Praetorian  Interdict(6)  of  the  Roman,  the  Injunction  of  the 
English  Law,  give  effect  to  this  principle  by  preventing  the  mischief 
from  being  done,  instead  of'endeavouring  to  remedy  it  when  done. 

CCCLXXXVII.  Some  analogous  right  or  power  must  exist  in  the 
system  of  International  Jurisprudence ;  "  Neither,"  says  Lord  Bacon, 
"  is  the  opinion  of  some  of  the  schoolmen  to  be  received,  that  a  war 
cannot  justly  be  made  but  upon  a  precedent  injury  or  provocation ;  for 
there  is  no  question  but  a  just  fear  of  an  imminent  danger,  though  there 
be  no  blow  given,  is  a  lawful  cause  of  a  war."(c)  The  Right  of  Self- 
*Defence  incident  to  every  State  may  in  certain  circumstances 
J  carry  with  it  the  necessity  of  intervening  in  the  relations,  and, 
to  a  certain  extent,  of  controling  the  conduct  of  other  States;  and  this 
where  the  interest  of  the  intervener  is  not  immediately  and  directly,  but 
mediately  and  indirectly,  affected.  This  remark  brings  us  to  the  consi- 
deration of  the  doctrine  of  INTERVENTION,  (d) 

I 

(a)  Inst.  I.  viii.  2. — "Chaque  droit  a  ses  limites :  il  est  limite  par  les  droits 
analogues  de  tous  les  membres  d'une  socie"te"." — Ahrens,  Cours  de  Droit  naturel 
ou  de  Philosophic,  du  Droit,  p.  296.     (Brux.  1844.) 

(b)  Among  the  principal  instances  in  which  individual  property  is  subjected  to 
restriction  on  account  of  the  general  good  are  the  following : 

Cautio  damni  infecti,  Dig.  xxxix.  t.  2. 
Actio  de  tigno  juncto,  Dig.  xlvii.  t.  3. 
Interdictum  de  glande  legenda,  Dig.  xliii.  t.  28. 
Actio  acquae  pluviae  arcendae,  Dig.  xxxix.  t.  3, 
Interdictum  de  arboribus  caedendis,  Dig.  xliii.  t.  27. 

(c)  Essay  on  Empire. 

(d)  Giinther,  i.  287.  s.  8 — 12. 
Heffters,  90. 

Wheaton,  Droit  Intern,  t.  i.  pp.  77.  92. 
Manning,  Law  of  Nations,  p.  97. 


INTERVENTION.  315 

The  reason  of  the  thing  and  the  practice  of  nations  appear  to  have 
sanctioned  this  Intervention  in  the  following  cases, — 

I.  Sometimes,    but  rarely,    in   the   domestic   concerns    and   internal 

rights  of  Self-G-overnment,  incident,  as  we  have  seen,  to  every 
State. 

II.  More  frequently,  and  upon  far  surer  grounds,  with  respect  to  the 

territorial  acquisitions  or  foreign  relations  of  other  States,  when 
such   acquisitions   or  relations  threaten  the  peace  and  safety  of 
other  States. 
In  the  former  case  the  just  grounds  of  Intervention  are — 

1.  Self-Defence,  when  the  Domestic  Institutions  of  a  State  are  incon- 

sistent with  the  peace  and  safety  of  other  States. 

2.  The  Rights  and  Duties  of  a  guarantee. 

3.  The  Invitation  of  the  Belligerent  Parties  in  a  civil  war. 

4.  The  Protection  of  Reversionary  Right  or  Interest. 
In  the  latter  case  the  just  grounds  of  Intervention  are — 

5.  To  preserve  the  Balance  of  Power ;  that  is,  to  prevent  the  danger- 

ous aggrandizement  of  any  one  State  by  external  acquisitions. 

6.  To  protect  Persons,  subjects  of  another  State,  from  persecution  on 

account  of  professing  a  Religion  not  recognised  by  that  State, 
but  indentical  with  the  Religion  of  the  Intervening  State. 

These  grounds,   either  separately  or  in  conjunction,  will  be  found  in 
the  following  pages  to  have  been  deliberately  and  *solemnly  pro- 
claimed  as  justifying  causes  of  Foreign  Intervention. 

CCCLXXXVIII.  The  First  Limitation  of  the  general  right,  incident 
to  every  State,  of  adopting  whatever  form  of  government,  whatever 
political  and  civil  institutions,  and  whatever  rules  she  may  please,  is 
this : 

No  State  has  a  right  to  establish  a  form  of  government  which  is  built 
upon  professed  principles  of  hostility  to  the  government  of  other 
nations,  (e) 

CCCLXXXIX.  It  may  be  admitted  that  Venice  in  1298,  Great 
Britian  in  1649,  France  both  in  1789  and  after  the  accession  of  the 
Cavaignac  Administration  in  1848,  and  after  the  last  revolution  in  1851, 
were  entitled,  upon  the  principles  of  National  Independence,  and  without 
the  Intervention  of  Foreign  States,  to  make  the  great  changes  in  their 
respective  constitutions  which  were  effected  at  those  periods,  because  such 
changes  concerned  themselves  alone. 

CCGXC.  Why,  then,  cannot  the  same  remark  be  applied  to  the  French 
Revolution  in  the  year  1792  ?  The  answer  is  to  be  found  in  the  Decree 
promulgated  by  the  Convention  on  the  19th  of  November,  1792. 

The  Moniteur  of  that  day  records  it  in  these  words  :  Lepeaux  propose 
et  la  Convention  adopte  la  redaction  suivante  : 

"  La  convention  nationale  declare  qu'elle  accordera  secours  a  tous  les 
peuples  qui  voudront  recouvrer  leur  liberte,  et  elle  charge  le  pouvoir 
executif  de  donner  des  ordres  aux  generaux  des  armees  Frangaises  pour 

(e)  Kent's  Comment,  i.  21.  &c. 


316  PHILLIMORE    ON    INTERNATIONAL    LAW. 

secourir  les  citoyens  qui  auraient  ete,  ou  qui  seraient  vexes,  pour  la 
cause  de  la  liberte. 

\  «  La  convention  nationale  ordonne  aux  generaux  des  armees  Fran§aises 
de  faire  imprimer  et  afficher  le  present  decret  dans  tous  les  lieux  ou  ils 
porteront  les  armes  de  la  republique. 

Sergint.     Je  demande  que  ce  decret  soit  traduit  et  *imprirne 
dans  toutes  les  langues. — Cette  proposition  est  adoptee." 

This  decree  was  treated  by  Great  Britain, (/)  which,  up  to  the  period 
of  its  promulgation,  had  remained  strictly  neutral,  as  a  declaration  of 
war,  of  the  worst  and  most  hateful  kind,  against  all  nations  ;  nor  indeed 
is  it  possible  to  conceive  a  grosser  violation  of  the  particular  principle 
of  International  Law(#)  which  we  are  discussing,  than  is  to  be  found  in 
this  barbarous  and  unprecedented  proclamation — the  herald  of  that 
long,  bloody,  terrible,  and  universal  war,  which  shook  not  only,  Europe, 
but  the  world  to  its  centre,  and  of  which  the  wounds  are  not  yet  healed. 
*CCCXCI.  It  is  impossible  to  deny  that  the  proclamation  put 
forward,  after  the  expulsion  of  Louis  Philippe,  by  the  De  Lamar- 
tine  Administration,  partook  of  the  same  character,  though  in  a  miti- 
gated degree. 

According  to  that  proclamation,  "Les  Traites  de  1815  n'existent  plus 
en  droit  aux  yeux  de  la  Republique  Francaise :  toutefois  les  circonscrip- 
tions  territoriales  de  ces  traites  sont  un  fait  qu'elle  admet  com  me  base  et 
conime  point  de  depart  dans  les  rapports  avec  les  autres  nations. "(&) 

CCCXCII.  In  cases  like  the  foregoing,  the  Right  of  Self-Defence  jus- 
tifies other  nations  in  intervening  and  demanding,  and  if  necessary  by 
force  of  arms  compelling,  the  abolition  of  a  government,  avowing  a  prin- 
ciple of  hostility  to  the  existing  governments  of  all  other  nations. 

(/)  "  The  decisive  proof  upon  the  subject  was  to  be  found,  not  in  loose  recol- 
lection or  in  vague  reports,  but  in  the  Journals  of  the  House. — The  speeches  with 
which  the  King  had  opened  and  concluded  each  session  of  parliament  afforded 
an  authentic  record  of  the  language  of  Government  respecting  the  origin,  grounds, 
and  progress  of  the  war.  There  were,  besides,  upon  the  Journals,  many  declara- 
tions which  this  House  had  made  at  different  periods,  and  sometimes  at  the  ex- 
press suggestion  of  Ministers  themselves,  and  with  the  avowed  intention  of 
obviating  misrepresentations. 

*  *  *-#*** 

"  This  then  was  his  defence  of  Parliament  against  the  imputation  of  having 
varied  its  language  or  disguised  its  objects — of  having  engaged  in  the  war  for  the 
restoration  of  monarchy  in  France,  or  of  having  pursued  it,  at  any  period,  with 
any  other  view  than  that  of  obtaining  a  secure  and  honourable  peace  for  this 
country." — Speech  of  Lord  Grenville  in  the  House  of  Peers,  on  the  motion  of  the 
Duke  of  Bedford  for  the  dismissal  of  Ministers,  22nd  March,  1798.  Pub.  by  J. 
Wright,  169.  Piccadilly. 

(g)  Vattel  justifies  by  anticipation  the  conduct  of  Great  Britain  in  declaring 
war  after  the  promulgation  of  this  decree.  "  Done  toutes  les  nations  sont  en 
droit  de  reprimer  par  la  force  celle  qui  viole  ouvertement  les  lois  de  la  societe  que 
la  nature  a  etablies  entre  elles,  ou  qui  attaque  directement  la  bien  et  le  salut  de 
cette  societeV' — Prelim,  a.  22.  "  Les  nations  ont  le  plus  grand  inte"ret  a  faire 
universellement  respecter  le  droit  des  gens,  qui  est  la  base  de  leur  tranquillite.  Si 
quelqu'un  le  foule  ouvertement  aux  pieds,  toutes  peuvent  et  doivent  s'61ever  centre 
lui ;  et  r^unissant  leurs  forces  pour  chatier  cet  ennemi  commun,  elles  s'acquit- 
teront  de  leurs  devoirs  envers  elles-mfimes  et  envers  la  soci6te  humaine,  dont  elles 
sont  membres." — L.  i.  c.  23,  s.  283. 

(A)  "  Manifesto  aux  Puissances,  4  mars :"  Trois  Mois  au  Pouvoir  de  M.  De 
Lamartine,  p.  75. 


INTERVENTION.  317 

But  this,  like  the  other  grounds  of  Intervention,  is  very  liable  to  be 
abused.  The  most  flagrant  instances  of  such  abuse  are  to  be  found  in 
the  Partitions  of  Poland. (i)  The  detailed  history  of  these  public  crimes 
is  without  the  province  of  this  Work.  But  no  treatise  on  International 
Law  may  pass  over,  wholly  without  comment,  these  grievous  acts  of 
national  wickedness. 

The  first  spoliation  was  effected  in  September,  1772,  by  *Cathe-  r*joai 
rine  II.,  Empress  of  Russia,  Marie  Therese,  Empress  of  Austria,  L 
and  Frederick  II.,  King  of  Prussia. 

In  the  manifesto  of  the  two  latter  may  be  read  the  miserable  pretexts 
under  which  this  crime  was  sought  to  be  veiled,  or  rather  which  it  was 
thought  decent  to  allege.  Austria  claimed  territory,  alienated  from  her 
to  Poland  several  centuries  ago,  her  first  date  being  1324  A.D.,  because, 
among  other  reasons,  by  the  Canon  Law  alienations  of  territory  by  a 
crowned  head  were  as  invalid  as  the  acts  of  a  minor.  Prussia  took  up 
her  history  not  earlier  than  1107  A.D.,  and  recited  various  subsequent 
losses  of  property  by  the  Margraves  of  Brandenburgh,  which  Poland  had 
acquired  at  a  time  when  the  Margraves  were  too  feeble  to  resist,  but  to 
which  property  it  was  alleged  that  the  Margraves  had  never  formally 
renounced  their  claim. 

It  is  manifest  that  the  original  sin  of  the  spoliation  was  greatly  en- 
hanced by  these  pretended  reasons  for  it;  every  one  of  them  aimed  a 
deadly  blow  at  some  sound  principle  of  that  faith  which  ought  to  bind 
together  the  nations  of  the  globe.  Russia,  by  far  the  boldest,  and,  if 
the  expression  were  allowable,  the  honestest  criminal,  seized  upon  her 
prey  at  once,  scorning  all  subterfuges,  and  making  openly  her  might  her 
right. 

These  three  spoliators,  however,  were  not  the  only  offenders  against 
International  Law.  France  and  England  beheld  with  silence  and  indif- 
ference this  violation  of  all  the  safeguards  of  national  liberty  and  inde- 
pendence :  they  cannot  be  acquitted  of  all  blame  j  they  contracted,  in 
some  degree,  the  guilt  of  the  by-stander  who  tamely  and  silently  suffers 
a  deed  of  wrong  to  be  perpetrated  in  his  presence. 

In  1790,  Poland,  availing  herself  of  the  occupation  afforded  by  a 
Turkish  war  to  Catherine  II.  (who  had  never  ceased  to  treat  her  as  a 
province  of  Russia),  contracted  an  alliance  with  Prussia,  whereby  that 

(t)  Mackintosh's  Works,  vol.  ii.  p.  330 ;  and  Edinburgh  Review,  vol.  xxxvi. 
p.  463. ' 

Ferrand,  Histoire  des  trois  De"membrements  de  la  Pologne. 

Rulhiere,  Histoire  de  1' Anarchic  de  Pologne. 

Flassan,  Histoire  de  la  Diplomatic  Fran9aise,  t.  vi. 

Dohm,  Denkwurdigkeiten  meiner  Zeit. 

Von  Raumer,  Polens  Untergang :  Histor.  Taschenbuch,  t.  iii. 

Koch,  Histoire  abrege"e  de  Traites  de  Paix,  continued  par  Schoell  (ed.  Bruxelles), 
t.  iv.  pp.  266—284,  c.  60,  ib.  pp.  296,  304,  307-13,  c.  62. 

Koch,  Tableau  des  Revolutions  de  1'Europe,  t.  ii.  pp.  168.  224.  284. 

Gentz,  Fragmente  aus  der  neuesten  Geschichte  des  politischen  Gleichgewichts 
in  Europa,  Schriften,  Band  iv.  ss.  51 — 59. 

Wheaton's  Hist.  pp.  267—281. 

Allge.  Gesch.  B.  23.  c.  11. 


318  PHILLIMORE     ON    INTERNATIONAL    LAW. 

power  undertook  to  aid  Poland  against  the  attempt  of  any  foreign  nation 
to  interfere  with  her  internal  government  or  affairs. (&) 
r*4.3QT  *Under  cover  of  this  alliance,  in  1791  Poland  gave  herself  a 
-1  new  constitution,  rendering  her  crown  hereditary  in  the  Electoral 
House  of  Saxony,  abolishing  that  source  of  her  misery  the  liberum  veto, 
and  effecting  a  reformation,  of  which  Mr.  Burke  said :  "  so  far  as  it  has 
gone,  it  probably  is  the  most  pure  and  defecated  public  good  which  ever 
has  been  conferred  on  mankind."(Z) 

But  the  French  Kevolution  broke  out,  and  Prussia  not  only  forgot  her 
pledge,  but  joined  with  Russia  and  Austria  in  plundering,  for  the  second 
time,  the  country  which  had  relied  upon  her  honour.  The  second  spoli- 
ation of  Poland  took  place  in  1793  ;  the  third,  after  the  insurrection  of 
the  illustrious  Kosciusko  in  1795. 

The  fate  of  Poland  was  again  discussed  at  the  Treaty  of  Vienna 
(1815)  ;  but  after  some  remonstrance  on  the  part  of  the  British  and 
French  plenipotentiaries,^)  and  the  delivery  of  a  remarkable  state  paper 
by  the  latter,  Russia  retained  that  part  of  ancient  Poland  erected  by 
Napoleon  into  the  Duchy  of  Warsaw,  and  by  this  Treaty  the  Partition  of 
Poland  was  ultimately  confirmed. 

This  Treaty,  however,  declared  Cracow  to  be  a  free,  independent,  and 
neutral  city,  under  the  protection  of  Russia,  Austria,  and  Prussia,  with 
so  many  square  miles  on  the  left  bank  of  the  Vistula,  and  a  certain 
amount  of  population.  This  small  remnant  of  their  original  prey  has 
been  subsequently  devoured  by  the  three  protecting  Powers.  In  1832 
the  Emperor  Nicholas  annexed  the  kingdom  of  Poland  to  the  Russian 
empire,  and  destroyed  every  vestige  of  its  separate  nationality.  In  1836 
Cracow  was  occupied  by  Russian  and  Austrian  forces,  upon  the  allega- 
tion that  it  had  become  the  centre  of  revolutionary  plots.  In  1846 
(November  6),  Cracow,  in  spite  of  the  protests  of  Great  Britain,  France, 
and  Sweden,  was  annexed  to  Austria. 

r*iim       *  Memorable  lessons  are  written  for  the  ensample  of  nations  in 
-I  the  history  of  these  great  crimes  and  their  consequences. 

First,  the  folly  and  short-sightedness  of  vulgar  politicians  who  hold 
the  doctrine  that  a  State  has  no  concern  with  the  acts  of  her  neighbour, 
and  that  if  wrong  be  done  to  others,  and  not  to  herself,  she  cannot  afford 
to  interfere. 

Secondly,  the  certainty  of  that  Nemesis  which  sooner  or  later  over- 
takes the  countries  which  have  been,  or  have  suffered  their  rulers  to  be, 
the  doers  of  wrong. 

It  requires  only  a  moderate  acquaintance  with  history  subsequent  to 
those  first  spoliations  of  Poland,  to  know  that  the  interference  of  England 
and  France  to  prevent  these  atrocious  acts,  and  to  defend  betimes  the 
liberties  of  Europe,  would  have  been  no  less  wise,  if  regarded  in  an  eco- 
nomical point  of  view,  than  just,  if  considered  upon  higher  principles ; 
and  the  hearts  of  the  Rulers  of  Austria,  Prussia,  and  Russia,  must  have 

(k)  Martens,  Rec.  de  Trace's,  t.  iv.  p.  472. 

h)  Appeal  from  the  New  to  the  Old  Whigs. 

(m)  Kliiber,  Acten  des  Wiener  Congr.  Band.  ix.  40 — 51. 

Wh«aton's  Hist.  pp.  425 — 435. 


INTERVENTION.  319 

been  more  hardened  than  that  of  Pharaoh,  if  they  did  not  acknowledge 
during  the  wars  of  the  French  Revolution,  and  in  the  day  of  their  bitter 
suffering  and  humiliation,  the  impolicy  of  injustice,  and  the  danger  of 
creating  a  precedent  of  rapine  and  wrong. 

Great  jurists  of  all  countries  have  passed  sentence  upon  the  partitions 
of  Poland.  M.  de  Talleyrand(w)  described  it  as  the  prelude,  as  partly 
the  cause,  and  perhaps  the  excuse  of  the  convulsions  of  Europe  during 
the  French  Revolution.  "  The  partition  of  Poland  in  1772,"  says  M. 
Koch,(o)  appeared  to  sanction  all  subsequent  usurpations."  It  was  the 
most  flagrant  violation,  according  to  Mr.  Wheaton,(p)  of  natural  justice 
and  International  Law,  since  Europe  had  emerged  from  barbarism.  No 
less  a  publicist  than  Von  Grentz(g')  observes  that  the  partition  of  Poland 
was  a  crime  *fraught  with  peculiar  mischief  to  the  best  interests  r^A/ii-i 
of  Europe — -it  showed  to-the  astonished  world  a  league  of  mo-  L 
narchs  in  favour  of  injustice; — those  who  ought  to  be  the  protectors, 
acting  as  the  oppressors  of  national  independence  ;  while  the  doctrine  of 
the  Balance  of  Power,  cited  as  a  justification  of  their  conduct  by  those 
who  were  destroying  it,  mournfully  illustrated  the  adage,  corruplio 
optimi  pessima. 

CCCXCIII.  The  Second  Limitation  arises  in  the  instance  of  a  Guar- 
antee given  by  a  Foreign  Nation,  either  generally  to  secure  the  inviola- 
bility of  the  provisions  of  a  particular  Treaty,  or  specially  to  support  a 
particular  Constitution  or  form  of  government(r)  established  in  another 
country,  or  to  secure  some  particular  possession  or  other  individual  object 
appertaining  to  it.  The  question  of  a  Federal  Guarantee,  mutually  given 
by  United  States,  has  been  already  discussed :  the  very  constitution  of 
such  a  body  politic  implies  the  existence  of  a  mutual  guarantee  for  the 
independence  of  each  member  of  it.  This  is  the  case  of  a  guarantee  from 
within,  a  question  rather  of  Public  than  International  Law,  and  very 
different  from  a  guarantee  from  without,  which  rests  upon  a  distinct  prin- 
ciple, and  is  one  of  the  most  difficult  and  delicate  questions  which  fall 
under  the  cognisance  of  International  Law.  The  consideration  of  the 
duties  and  rights  of  guarantees  belongs  to  that  branch  of  the  subject  in 
which  the  nature  of  TREATIES  is  discussed. 

CCCXCIV.  Another  Limitation  of  the  general  principle  under  discus- 
sion may  possibly  arise  from  the  necessity  of  Intervention  by  Foreign 
Powers  in  order  to  stay  the  effusion  of  blood  caused  by  a  protracted  and 
desolating  civil  war  in  the  bosom  of  another  State. (s)  This  ground  of 

Jn)  Note  to  the  Congress  of  Vienna. 
o)  Introd.  p.  30.  (p)  Hist.  p.  332. 

q)  Fragmente  aus  der  neuesten  Geschichte  des  politischen  Gleichgewichts  in 
Europa,  Schriften,  t.  iv.  ss.  54 — 59. 
( r)  Vide  post. 

(*)  "  Sciendum  quoque  est,  Reges,  et  qui  par  Regibus  jus  obtinent,  jus  habere 
poenas  poscendi  non  tantum  ob  injurias  in  se  aut  subditos  suos  commissas,  sed  et 
ob  eas  quae  ipsos  peculiariter  non  tangunt,  sed  in  quibusvis  personis  jus  natures  aut 
gentium  immaniter  violantibus.  Nam  libertas  humanse  societati  per  poenas  consul- 
endi,  quae  initio  ut  diximus  penes  singulos  fuerat  civitatibus  ac  judiciis  institutis 
penes  summas  potestates  resedit ;  non  proprie  qua  aliis  imperant,  sed  qua  nemini 
parent.  Nam  subjectio  aliis  id  jus  abstulit.  Imo  tanto  honestius  est  alienas  in- 
jurias quam  suas  vindicate,  quanto  in  suis  magis  metuendum  est  ne  quis  doloris 


320  PHILLIMORE    ON    INTERNATIONAL    LAW. 

r*44.91  IQtervention,  *urged  on  behalf  of  the  general  interests  of  hu- 
J  manity,  has  been  frequently  put  forward,  and  especially  in  our 
own  times,  but  rarely,  if  ever,  without  others  of  greater  and  more  legiti- 
mate weight  to  support  it ;  such,  for  instance,  as  the  danger  accruing  to 
other  States  from  the  continuance  of  such  a  state  of  things,  or  the  right 
to  accede  to  an  application  from  one  of  the  contending  parties. 

As  an  accessory  to  others,  this  ground  may  be  defensible;  but  as  a 
substantive  and  solitary  justification  of  Intervention  in  the  affairs  of  ano- 
ther country,  it  can  scarcely  be  admitted  into  the  code  of  International 
Law,  since  it  is  manifestly  open  to  abuses,  tending  to  the  violation  and 
destruction  of  the  vital  principles  of  that  system  of  jurisprudence, — such 
abuses  as  generated  the  several  partitions  of  Poland,  the  great  precedent  so 
often  quoted,  and  so  often  imitated  by  the  violators  of  International  Law. 
The  necessity  of  staying  the  effusion  of  blood  occupied  a  very  prominent 
place  among  the  various  reasons  alleged  for  the  Intervention  in  the  affairs  of 
Turkey  and  her  then  Greek  subjects  in  1827;  but  it  was  by  no  means, 
as  will  be  presently  seen,  the  only  justification  advanced  for  that  Inter- 
vention, though,  perhaps,  if  it  had  been  the  long  continuance,  as  well  as 
the  horrible  nature  of  the  massacres  committed,  would  alone,  if  ever  such 
reasons  could,  have  justified  the  interference  of  Christendom. («) 

CCCXCV.  A  Third  Limitation  arises  when  both  contending  parties 
in  a  civil  war  invite  the  Intervention  of  a  third  power :  in  this  case  the 
right  to  accede  to  the  request  is  perfectly  clear.  This  was  in  fact  the 
foundation  of  the  Intervention  in  the  case  of  Belgium.  Whether,  when 
the  Intervention  has  been  once  undertaken,  either  or  both  of  the  con- 
*en<^ng  *parties  can  resile  from  their  engagement,  and  whether 
the  Intervener  bf  obliged  to  desist  re  infectd,  is  a  matter  of  some 
nicety,  and  must  in  some  measure  receive  its  decision  according  to  the 
particular(tt)  circumstances  of  each  case.(rr)  The  Intervener  might  of 
course  stipulate,  before  he  undertook  the  Intervention,  that  both  parties 
should  abide  by  his  decision.  Although  the  right  of  intervening  admits 
of  no  doubt  where  both  parties  invoke  the  Intervention,  it  is  less  clear 
when  the  application  is  made  by  one  party  alone.  It  can  however  hardly 
be  asserted,  that  even  this  kind  of  Intervention,  so  solicited,  is  at  vari- 
ance with  any  abstract  principle  of  International  Law,  while  it  must  be 
admitted  to  have  received  continual  sanction  from  the  practice  of  nations 
from  the  time,  to  go  back  no  later,  when  England  under  Queen  Elizabeth 
aided  the  revolted  Netherlands  against  Spain,  to  the  recent  occasion  when 
Russia  assisted  Austria  in  the  subjugation  of  the  insurgents  in  Hungary. 
It  will  be  remembered  that  at  present  we  have  no  concern  with  the  wis- 

sui  sensu  ant  modum  excedat,  aut  certe  animum  inficiat." — Grotius  de  J.  B.  lib. 
ii.  cap.  xx.  sec.  xl.  p.  535. 

(a)  Papers  relative  to  the  affairs  of  Greece,  p.  98. — London,  1835.  (Printed  by 
the  Foreign  Office.) 

(u)  France  and  England  were  the  only  two  of  the  five  Intervening  Powers,  in 
the  case  of  Belgium,  who  seem  to  have  entertained  no  scruples  upon  this  kind. — 
Papers,  <fcc.,  relative  to  Belgium. — Les  Ple"nipotentiares,  &c.,  p.  35 ;  and  in  the 
case  of  Portugal,  and  in  the  case  of  Greece,  vide  infra,  Wheaton,  Hist.  541. 

(x)  Heffters  maintains  stoutly  the  obligation  of  withdrawing  at  the  request  of 
the  party  who  invoked  the  aid  (p.  95.  end  of  s.  46.) — Martens,  t.  i.  80-1-2. 


INTERVENTION.  321 

dom  or  policy  of  such  an  Intervention ;  that  is  a  National,  not  an  Inter- 
national question.  There  is,  however,  one  proposition  with  respect  to 
this  kind  of  Intervention  which  cannot  be  too  broadly  or  emphatically 
stated. 

In  order  to  justify  such  Intervention,  the  kingdom  in  which  it  is  to 
take  place  must  be  really  divided  against  itself;  there  must  be  therein 
two  parties  in  the  bonS,  fide  condition  of  waging  actual  war  upon  each 
other. 

No  mere  temporary  outbreak,  no  isolated  resistance  to  authority,  no 
successful  skirmish  is  sufficient  for  this  purpose ;  there  should  be  such  a 
contest  as  exhibits  some  "  equality  of  force,  and  of  which,  if  the  combat- 
ants were  *left  to  themselves,  the  issue  would  be,  in  some  degree,  r¥1^A1 
doubtful."^) 

In  most  cases,  therefore",  some  time  must  elapse  before  an  internal 
commotion  can  be  clothed  with  the  character  of  a  revolution,  and  before 
the  rebellious  subjects  can  become  the  allies  of  a  Foreign  State. 

The  interference  of  Great  Britain,  France,  and  Russia  in  the  affairs  of 
Greece  was  vindicated  upon  three  grounds,  viz.,  1st,  of  complying  with 
the  request  of  one  party;  2ndly,  of  staying  the  effusion  of  blood ;  Srdly, 
and  principally,  of  affording  protection  to  the  subjects  of  other  Powers 
who  navigated  the  Levant,  in  which  for  many  years,  atrocious  Piracy  had 
been  exercised,  while  neither  Turkey  nor  revolted  Greece  were  de  facto 
either  able  or  willing  to  prevent  the  excesses  springing  out  of  this  state 
of  anarchy.  The  third  ground  unquestionably  justifies  such  an  inter- 
ference as  might  redress  the  evil  complained  of,  and  secure  the  subjects 
of  third  Powers  against  a  repetition  of  it.  But  the  interference  took 
place  at  the  request  of  only  one  of  the  contending  parties,  and  that  the 
party  of  revolted  subjects  ;  and  it  is  edifying  to  observe  with  what  scru- 
pulous care  the  British  Minister  for  Foreign  Affairs,  of  that  time,  justi- 
fies, as  an  exception  to  general  rules,  the  adoption  of  coercive  measures 
against  Turkey. 

"  To  accomplish  a  great  good,"  says  this  admirable  State  Paper,(z) 
"  to  put  an  end  to  a  great  evil,  pressing  seriously  upon  the  interests  of 
His  Majesty's  own  subjects,  after  several  previous  attempts  by  advice 
and  remonstrance,  separate  or  combined,  had  failed,  and  at  the  solicitation 
of  one  of  the  contending  parties,  His  Majesty  acceded  to  a  more  direct 
and  concerted  interference  in  the  affairs  of  Greece.  The  Treaty  of  Lon- 
don was  signed ;  and  when  proposals,  made  under  it  to  both  sides,  and 
accepted  by  the  Greeks,  had  been  rejected  by  the  Turks,  his  Majesty 
proceeded,  *along  with  his  Allies,  to  adopt  measures  of  a  coercive 
nature,  calculated  to  give  effect  to  those  proposals.  But,  in  this 
departure  from  the  general  rule  which  forbids  other  Powers  to  interfere 
in  contests  betwixt  Sovereign  and  Subject,  His  Majesty  strictly  limited 
himself  to  what  he  deemed  the  necessity  of  the  case;  and  in  pursu- 
suing  an  object  of  policy,  endeavoured  to  adhere,  as  much  as  possible,  to 
the  principles  of  National  Law. 

(y)  Sir  J.  Mackintosh's  Speech  on  the  Recognition  of  the  Spanish  American 
States,  vol.  iii.  p.  462,  of  his  Works. 

(z)  State  Papers— Greece,  1826—1832,  pp.  54,  55.    Lond.  1835. 


322  PHILLIMORE    ON    INTERNATIONAL    LAW. 

"The  design  of  the  Treaty  was  the  pacification  of  the  Levant;  but  it 
is  evident,  both  from  the  provisions  of  that  Treaty,  and  from  the  lan- 
guage of  the  Protocol  which  preceded  it,  as  well  as  from  the  tone  of 
every  communication  relating  to  the  Greek  question,  which  has  been 
made  by  His  Majesty's  commands  since  the  Congress  of  Verona,  that  it 
was  equally  our  design  to  accomplish  this  end  by  pacific  means.  It  was 
but  late,  slowly  and  unwillingly,  that  we  entertained  the  idea  of  any 
species  of  coercion;  and  then  only  with  such  caution,  and  with  such  a 
reservation  of  our  right  to  look  narrowly  at  each  successive  stage  in  that 
career,  as  were  in  themselves  sufficiently  indicative  of  the  spirit  in  which 
we  interposed.  The  conduct  of  the  Allies  is  inexplicable  upon  any  other 
ground  than  that  which  is  here  stated  to  have  been  its  foundation.  If 
the  intention  of  three  of  the  greatest  Powers  in  Europe,  to  put  an  end 
to  a*  manifest  grievance,  had  not  been  controlled  and  modified  by  many 
weighty  considerations  of  justice  and  policy,  they  would  have  pursued  a 
far  different  course.  They  would  not  have  waited  six  years  before  thoy 
carried  their  interposition  beyond  the  limit  of  amicable  remonstrance; 
nor,  having  at  length  satisfied  themselves  that  they  must  advance  some- 
what further  for  the  execution  of  their  design,  would  they  have  stipulated 
beforehand  to  pause  upon  every  successive  step,  in  order  to  give  time  for 
reflection  and  concession  on  the  part  of  a  power  whom  they  did  not  de- 
sign to  crush,  or  even  to  humble,  but,  if  possible,  to  lead  into  the  path 
of  safety  and  repose. 

r*d.4.fi~l  "  ^  *key  ^a<^  no*  keen  restrained  by  such  considerations,  *they 
-*  would  at  once  have  put  forth  a  strength  irresistible  by  far  greater 
empires;  they  would  have  substituted  dictation,  backed  by  force,  for  ad- 
vice and  remonstrance;  and  they  would  not  have  asked  the  consent  of 
those  to  whom  it  was  in  their  power  to  give  law.  But  they  felt,  as  we 
still  feel,  that  this  was  a  case  surrounded  with  difficulties,  of  which  the 
mere  physical  resistance  of  the  contumacious  party  was  the  least.  They 
knew  that  hasty  and  violent  measures  might  draw  along  with  them  evils 
worse  than  those  which  they  meant  to  remedy.  They  knew  too  that  the 
long  continuance  of  extraordinary  evils  might  justify  an  extraordinary 
interposition.  Still  they  felt  that  they  were  bound  to  take  care  that  the 
interposition  should  not  be  more  than  commensurate  with  the  evil;  that 
it  was  neither  politic  nor  just  to  risk  the  overthrow  of  an  empire,  for  the 
chance  of  improving  the  condition  of  a  part  of  its  subjects;  and  that  the 
cessation  of  Piracy  in  the  Levant  would  be  dearly  purchased  by  a  general 
war  in  Europe." 

The  pacification  of  Greece  and  the  Levant  was  the  object  of  the  Treaty 
of  1827,  contracted  between  Russia,  England,  and  France;  the  object  of 
it  was  not  "to  construct  a  State  capable  of  balancing  the  Turkish  power 
in  Europe,  and  of  carrying  on  the  relations  of  peace  and  war  upon  a 
footing  of  equality  with  the  Porte;"  this  object,  nevertheless,  might, 
after  the  rejection  by  Turkey  of  the  compromise  proposed  in  that  Treaty, 
have  been  partly  intended  and  effected  by  the  subsequent  Treaty  of  the 
7th  of  May,  1822. (r)  The  distinction  between  Intervention  and  Media- 

(ffl)  Papers  p.  155. 


INTERVENTION.  3£3 

tion  is  pointed  out  in  the  happiest  manner  by  Mr.  Canning,  in  a  passage 
of  his  state  paper  upon  the  Pacification  of  Greece  at  the  close  of  the  year 
1824.  "If"  (he  wrote)  "the  sovereignty  of  the  Turks  were  not  to  be 
absolutely  restored,  nor  the  independence  of  the  Greek  to  be  absolutely 
acknowledged  (to  propose  either  of  which  extremes  would  have  been  not 
to  mediate,  but  to  take  a  decided  part  in  the  contest},  there  was  neces- 
sarily no  other  choice  than  to  qualify  in  some  mode  *and  degree  T-^AA^-I 
the  sovereignty  of  the  one,  and  the  independence  of  the  other,  L 
and  the  mode  and  degree  of  that  qualification  seemed  to  constitute  the 
question  for  inquiry  and  deliberation."^) 

CCCXCVI.  This  observation  brings  us  to  the  consideration  of  the 
Fourth  Limitation  of  the  general  principle  which  founds  the  Eight  of 
Intervention, — which  is,  the  right  of  third  powers  to  watch  over  the 
preservation  of  the  balance  of  power  among  existing  States,  whether  by 
preventing  the  aggressions  and  conquests  of  any  one  power,  or  by  taking 
care  that,  out  of  the  new  order  of  things  produced  by  internal  revolu- 
tions, no  existing  power  acquires  an  aggrandisement  that  may  menace 
the  liberties  of  the  rest  of  the  world,  (c) 

This  right,  indeed,  is  the  right  of  the  State  to  do  that  which  Cicero,  (<£) 
with  so  much  eloquent  reason,  truly  maintained  was  the  innate  right  of 
every  individual :  it  is  the  *Kight  of  Self  Defence,  which  is  law- 
fully  exercised  in  preventing  as  well  as  repelling  attack. (e) 

How  anxiously  this  right,  "  founded  so  much  on  common  sense  and 
obvious  reasoning,"  was  asserted  and  cherished  by  the  Greeks,  is  well 
known  to  all  readers  of  Thucydides  and  Xenophon,  and  above  all  of 

(6)  Reply  of  Mr.  Secretary  Canning  to  a  letter  of  M.  Radios,  relative  to  the 
"  Russian  Memoir  on  the  Pacification  of  Greece." — Vol.  xii.  of  State  Papers 
(1824-25),  p.  900. 

(c)  Gunther,  i.  345. 

Martens,  s.  121,  a.  b. 

Ancillon  uber  den  Geist  der  Staatsverf.,  320,  u.  s.  vr. 

Klinkhammer's  Disp.  Hist.  Pol.  de  Belli  propter  success.  Regni  Hispan.,  &c.  (1829, 
Amstelodami),  pp.  52-66. 

De  Garden's  Traite  Complet  de  Dipl.  t.  i.  p.  257. 

Foreign  Quarterly  Review,  vol.  viii.  (1831),  vol.  xiii.  1834. 

Mackintosh's  second  Review  of  Burke's  Letter  on  a  Regicide  Peace. 

2  Ortolan,  Du  Domaine  International  (tit.  iii.  De  1'Equilibre  Politique),  con- 
tains, among  other  passages  worthy  of  attentive  perusal,  an  elaborate  review  of 
the  projects  of  Henry  IV.  and  Sully  to  found  a  Republique  tres  Chrestienne,  and 
thereby  maintain  a  perpetual  European  equilibrium — an  idea  which  M.  Ortolaiv 
thinks  pervaded  the  minds  of  the  framers  of  the  Treaty  of  Westphalia. — Gentz, 
Ausgewahlte  Shriften,  iv.  i.  Fragmente  aus  derneuesten  Geschichte  des  politischen 
Gleichgeweichts. 

Fenelon,  (Euvres  de,  t.  iii.  p.  361,  ed.  1835:  Examen  de  la  Conscience  sur  lea 
Deveirs  de  laRoyaute*,  in  which  work,  written  for  the  instruction  of  the  Duke  of  Bur- 
gundy, Mr.  Wheaton  remarks  (Hist.  p.  82)  that  the  principles  of  Intervention  to 
maintain  the  balance  of  power  are  laid  down  with  accuracy  and  moderation. 

Mably,  vol.  ii.  pp.  88,  107,  212. 

(d)  Pro  Milone. 

(e]  "  Ainsi  quand  un  e"tat  voisin  est  injustement  attaque*  par  nn  ennemi  puissant, 
qui  menace  de  1'opprimer,  il  n'est  pas  douteux  que  vous  ne  deviez  le  faire.     N'ob- 
jectez  point  qu'il  n'est  pas  permis  &  un  souverain  d'exposer  la  vie  de  ses  soldats 
pour  le  salut  d'un  Stranger,  avec  quiil  n'aura  contracte  aucune  alliance  defensive, 
il  peut  lui-meme  se  trouver  dans  le  cas  d'avoir  besoin  de  secours;  et,  par  conse- 
quent, mettre  en  vigueur  cet  esprit  d'assistance  mutuelle,  c'est  travailler  au  salut 
de  sa  propre  nation." — Vattel,  1.  ii.  c.  1-4. 


324  PHILLIMORE     ON     INTERNATIONAL     LAW. 

Demosthenes,  whose  eloquence  was  never  more  "  resistless" (/)  than 
when  exerted  for  the  purpose  of  rousing  his  countrymen  to  adopt  and 
act  upon  this  principle. (#) 

In  the  History  of  Rome  the  opportunities  for  the  development  of  this 
principle  were  fewer;  but  the  pages  of  Livy  and  Polybius  have  recorded 
some  remarkable  instances  of  its  operation.  The  reflection  of  the  latter 
historian  upon  the  conduct  of  Hiero,  King  of  Syracuse,  who,  though  an 
ally  of  Rome,  sent  aid  to  Carthage,  during  the  war  of  the  Auxiliaries, 
may  claim  a  place  even  in  a  modern  work  upon  International  Law. 
Hiero  esteemed  it  necessary,  Polybius  tells  us,  "both  in  order  to  retain 
his  dominions  in  Sicily,  and  to  preserve  the  Roman  friendship,  that  Car- 
thage should  be  safe;  lest  by  its  fall  the  remaining  power  should  be  able, 
without  let  or  hindrance,  to  execute  every  purpose  and  undertaking. 
r*44Ql  *And  nere  he  acted  with  great  wisdom  and  prudence;  for  that 
•J  is  never,  on  any  account,  to  be  overlooked;  nor  ought  such  a 
force  ever  to  be  thrown  into  one  hand,  as  to  incapacitate  the  neighbour- 
ing States  from  defending  their  rights  against  it." 

Most  justly  does  Mr.  Hume  remark  upon  this  passage,  "  Here  is  the 
aim  of  modern  politics  pointed  out  in  express  terms."(&) 

It  was  the  natural  tendency  of  the  Feudal  System  introduced  into 
Europe,  after  the  fall  of  Rome,  to  restrain  each  State  within  its  own 
boundaries  j(i')  and  it  may  be  said,  that  from  the  reign  of  Charlemagne, 
to  the  invasion  of  Italy  by  Charles  VIII.  of  France,  towards  the  close 
of  the  fifteenth  century,  the  state  of  the  civilised  world  was  not  such  as 
to  call  into  any  general  operation  this  principle  of  International  Law.(/£) 
To  repel  this  invasion,  the  ingenious  and  refined  Italians  strove  to  induce 
the  European  powers  to  adopt  that  policy  of  preventing  the  undue 
aggrandisement  of  any  one  power,  by  which  they  had,  for  some  time, 
mainlined  the  equilibrium  of  the  petty  States  of  their  own  Peninsula. 
During  the  century  which  followed,(Z)  and  from  the  time  that  the  liber- 
ties of  the  German  Protestants  were  secured,  under  the  guarantee  of 
France  and  Sweden,  by  the  Peace  of  Westphalia  in  1648,  this  principle 
of  International  Law  has  been  rooted  in  the  usage  and  practice  of  the 
whole  civilized  world.  The  preservation  of  the  Balance  of  Power  has 
been  the  professed  subject  of  all,  and  the  real  end  of  most  of  what  may 
be  called  the  Cardinal  Treaties.  The  recital  and  analysis  of  the  events 

(/)  "  That  resistless  eloquence, 

Which  shook  the  Arsenal  and  fulmined  over  Greece 
From  Macedon  to  Artaxerxes'  throne." 

Milton,  Par.  Reg.  iv.  2  TO. 

(  g}  Among  the  passages,  See  K  a  T  d  <J>  i  X.  F.  i  c  "  roiig  aXXotij  SjSri  n-apavaXai/jei',  Kal  roi>s 
ravra  (5<(ia£<rcraj  eiciriinrwfiev  Jrp£<r/?£ij  iravraxoT,  fls  n£\oir6vvri<rov,  £tj  'P(5<W,  fig  Xiov  a>s 
/?ao-(Xsa  Xeyaj — oiill  yap  T&V  SKSIVU  av  u(j>Ep6vr(t>v  A<ptarr\KE  TO  [tfi  TOVTOV 
iS.oa.1  iravTO.  Karaarpii^airQai — "tv  iav  fiiv  TSIO-^K,  Kotvuvov;  £Xlr£  *<"  «3i> 
KIV&VVU>V}  Kal  rS>v  dvaXco/jarcoi',"  K.r.X. 

(A)  Polybius,  1.  i.  C.  83,<(T(5r«  II  Kal  ^aXXov  e^iXori/mro  TTSTTSKT/XEVOJ  crvftificpeiv  lavrd  KO.I 
rrpdj  Triv  iv  Si/ceXia  ivvatrrsiav  KOI  npd;  r/)i/  "Pufiaiuiv  <j>i\iav  Td  tj6^e.aQai  Kap\edoviov;  .  Iva  fiij 
Trai/raTrao-iv  E£g  TO  wpOTtdiv  dxovirl  ovvTC\ci<rOai  roTs  iaTivovoiv,  itavv  (ppovi/tus  Kal  vovvex&s 

Xoyt£fy«voj,"  K.r.X. — Hume's  Essays,  vol.  ii.  p.  323,  Essay  vii.,  On  the  Balance  of 
Power. 

!i)  See  Koch,  Tableau  des  Revolutions,  t.  i.  pp.  314-15,  &c. 
h)  Koch,  as  to  English  Conquests  in  France,  t.  i.  p.  314. 
Z)  Wheaton's  Hist.  p.  81. 


INTERVENTION.  325 

which    led  to  them,   *belongs  to  the  history  of  the  progress, 
rather  than  a  treatise  on  the  principles,  of  International  Juris- 
prudence.     It  will  be  sufficient  for  our  present  purpose  to  notice  briefly 
those  Treaties  in  which  this  feature  is  most  conspicuous. 

CCCXCVII.  In  the  year  1519, (m)  enormous  territorial  possessions 
rendered  the  Emperor  Charles  V.  more  powerful  than  any  sovereign 
who  had  existed  in  Christendom  since  the  reign  of  Charlemagne  j 
a  natural  apprehension  was  felt  by  the  other  States  of  Europe,  which 
the  personal  character  of  Charles  was  well  calculated  to  foment,  (w)  No 
better  occasion  could  arise  for  the  practical  application  of  that  refined 
and  sagacious  policy,  which  had  so  lately  crossed  the  Alps.  France 
took  upon  herself  the  task  of  adjusting  the  equilibrium  of  power  in 
Europe  :  Francis  I.  actually  concluded  for  this  object,  a  Treaty  of  Alli- 
ance with  the  Turks,  the  first  Treaty  contracted  by  an  European  Sove- 
reign, and  by  which  the  Porte  may  be  said  to  have  been  introduced  into 
the  political  sytem  of  the  West,  and  to  have  become  a  consenting  party 
to  a  branch  of  positive  International  Law.  The  next  step  taken  by 
France,  was  to  constitute  herself  protectress  of  the  minor  German  States; 
and  in  the  intensity  of  her  zeal  to  effect  her  object,  she  availed  herself 
of  the  tremendous  weapon  which  the  Religious  war  of  the  Reformation 
offered  to  her  grasp.  The  all-important  succour  which  Queen  Elizabeth 
of  England  afforded  to  the  revolted  Netherlands,  was  a  natural  conse- 
quence both  of  the  political  and  religious  condition  of  her  kingdom. (o) 

But  the  effects,  which  this  maxim  of  preserving  the  liberty  of  all 
States  by  preventing  the  undue  aggrandisement  of  one,  produced  upon 
the  policy  of  France,  are  such  as  must  have  baffled  all  previous  calcu- 
lation. Then  was  unfolded  that  remarkable  page  of  history,  in  which 
Roman  Catholic  France  was  seen,  under  the  governments  of  Richelieu 
and  Mazarin,  ^repressing  with  one  hand,  and  that  a  hand  of.  r+Az-i-} 
iron,  the  Calvinistic  subjects  of  her  own  land ;  while  with  the*  "- 
other  she  supported  the  Protestants  of  Germany  in  their  long  and  suc- 
cessful opposition  to  the  aggressions  of  the  Imperial  power. 

The  triumph  of  this  principle,  of  preserving  the  Balance  of  Power, 
was  the  real  object  of  the  terrible  and  desolating  war  of  the  Thirty 
Years.  The  creation  of  the  Federal  System  of  the  Germanic  Empire, 
and  the  recognition  of  the  two  new  independent  States — the  United 
Netherlands,  and  the  Swiss  Cantons — guaranteed  by  France  and  Sweden 
in  the  Treaties  of  Westphalia  (1648)  and  the  Pyrenees  (1659),  were 
intended  and  supposed  to  form  an  effectual  barrier  to  the  undue  prepon- 
derance of  Austria,  and  to  have  secured  the  equilibrium,  and  thereby 
the  peace  of  Europe. 

The  independence  and  liberties  thus  secured  to  the  States  of  Southern 
Europe  were,  about  the  same  time  guaranteed,  by  the  Treaties  of  Copen- 
hagen (1658)  and  Oliva  (1660),  to  the  States  jof  Northern  Europe,^) 
which  composed,  in  some  sort,  a  distinct  system. 

(m)  Koch,  i.  317.  (n)  Ib.  i.  318. 

(o)  Sully' s  memorable  proposition  to  Queen  Elizabeth,  Koch,  i.  519. 
(p)  Bynkershoek  considers  this  forcible  pacification  of  the  North  to  hare  been 
an  infringement  of  Internaitonal  Law :  "  Ut  iniquum  eat  (he  says)  principem  invitum 


326  PHILLIMORE    ON    INTERNATIONAL    LAW. 

The  equilibrum  of  power  in  the  North,  which  had  been  endangered 
by  the  ambition  of  Sweden,  was  adjusted  by  the  Treaties  between  Swe- 
den, Denmark,  Poland,  and  the  Electorate  of  Braudenburgh,  under  the 
guaranteeship  of  Austria,  France,  England,  and  the  United  Provinces. 

*Before  the  close  of  the  century  in  which  these  Treaties  were 
made,  the  aggrandizement  and  the  ambition  of  France  united 
against  her  the  same  powers  which  had  formerly,  for  like  causes  existing 
elsewhere,  leagued  themselves  with  her ;  and  to  those  powers  were  now 
added  Great  Britain  and  the  United  Provinces. 

The  principal  object  of  the  Treaty  of  Utrecht  (1713),  Kastadt  and 
Baden  (1714),  was  to  secure  Europe  against  the  universal  dominion  of 
France.  * 

By  the  fundamental  articles  of  this  Treaty,  the  second  great  landmark 
of  modern  history,  it  was  declared  that  the  kingdoms  of  France  and 
Spain  should  never  be  united  under  one  sceptre ;  and  that  the  Spanish 
Netherlands  should  be  transferred  to  the  House  of  Austria,  to  which 
Milan  and  Naples,  with  less  reason,  were  also  assigned.  (5) 

The  avowed  object  of  the  memorable  wars  which  preceded  this  Treaty, 
and  of  the  convention  itself,  was  the  restoration  of  the  Balance  of  Power 
in  Europe. (r)  This  Treaty  may  in  some  degree  be  said  to  have  "  called 
in  the  New  World  to  balance  the  Old;"(s)  the  balance  being  partly 
adjusted  by  the  cession  and  transference,  from  one  European  power  to 
another,  of  colonial  possessions  in  other  parts  of  the  globe  ;(t)  in  other 
words,  positive  International  Law  was  carried  beyond  the  limits  of  Eu- 
rope. 

This  Treaty  was  made,  to  borrow  its  own  language,(u)  "  ad  conservan- 
dum  in  Europa  equilibrium;"  indeed  the  recognition  of  the  system  of 
balance  may  be  dated  from  this  epoch  :  and — if  we  except  a  partial 
deviation  from  it  by  the  Treaty  of  Vienna  in  1738,  which  seated  a 
younger  branch  of  the  Spanish  monarchy  upon  the  throne  of  the  Two 
Sicilies — it  Continued  to  govern  the  territorial  arrangements  of 
the  South  of  Europe,  till  the  first  French  Revolution,  and  is 
mentioned  in  every  treaty  of  peace  till  that  of  Luneville,  in  1800. 

So  late  as  1846-7(v)  the  Treaty  of  Utrecht  was  invoked  by  England, 

ad  bellum  cogere,  ita  et  ad  pacem.  Cum  tamen  Ordines  Generates  sibi  a  Francis 
metuerent,  et  Franciae  quoque  magnitude  liminibus  Anglicis  videretur  officere, 
Angliae  et  Sueciae  reges,  itemque  Ordines  Generales  23  Jan.  1668,  iniveruntfcedus, 
quo  inter  alia  cautum  est,  ut  Hispani,  quos  inter  et  Francos-bellum  erat,  quasdam 
conditiones,  illo  fcedere  praescriptas,  tenerentur  accipere,  et,  iis  acceptis,  si  Francias 
Rex  pergeret  regi  Hispaniae  bellum  facere,  se  armis  intercessuros,  cOactis  sic  ad 
pacem  Franciae  et  Hispaniae  regibus.  Rursus,  cum  publiee  non  expediret,  Sueciae 
regem  etiam  Daniam  habere,  Sueciae  regem  cum  Dano  pacem  facere  cOegerunt 
Franci,  Angli  et  Ordines  Generales  21  May,  1659,  erepto  sic  Daniae  rege  mediis  ex 
faucibus  Orci,  in  quas  se  praecipitaverat,  vicino  potentiore  in  se  concitato.  His 
injuriis  praetexitur  studium  conservandae  pads,"  &c. — Quaest.  Jur.  Pub.  1.  i.  c.  xxv. 
s.  10. 

(q)  Koch,  ii.  7.  27.  (r)  Wheaton,  Hist.  p.  125. 

(s)  Mr.  Canning's  Speech  on  sending  the  troops  to  Portugal. — Speeches,  vol.  vi. 
p.  61.  (t)  Wheaton,  Hist.  p.  87.  (u)  Koch,  ii.  92. 

(v)  Mackintosh's  Works  (Speech,  Feb.  19,  1816),  who  thinks  that  the  Treaty  of 
Utrecht  is  not  now  in  force ;  but  see  a  pamphlet  on  the  Montpensier  Marriage, 
written,  it  is  believed,  by  Lord  William  Hervey,  secretary  to  the  English  embassy 


INTERVENTION.  327 

when  protesting  against  the  ill-omened  marriage  of  the  the  Due  de  Mont- 
pensier ;  and  though  the  doctrine  of  non-revival,  by  express  mention  in 
subsequent  Treaties,  may  be  held  to  have  annulled  the  binding  force  of 
its  specific  provisions,  the  principle  of  European  policy,  namely,  that  the 
Crowns  of  France  and  Spain  shall  never  rest  upon  the  same  head,  is  put 
on  record  for  ever  by  a  Treaty  of  this  description. 

CCCXCVIII.  From  the  date  of  the  Treaty  of  Utrecht  to  the  present 
day,  the  progress  and  fate  of  this  principle  of  International  Law  have 
undergone  great  vicissitudes.  The  most  convenient  way  of  drawing 
attention  to  them  is  to  divide  the  period  which  has  elapsed  between  1713 
and  1854  into  three  Historical  Epochs,  namely, 

1.  The  interval  between  the  Treaty  of  Utrecht  and  the  breaking  out 

of  the  first  French.  Revolution  (1713 — 1789). 

2.  The  interval  between  the  first  French  Revolution  and  the  Treaty 

of  Vienna  (1789—1815). 

3.  The  interval  between  the  Treaty  of  Vienna  and  the  present  time 

(1815—1854). 

1.  In  the  first  interval  various  causes,  natural  and  moral,  conspired  to 
disturb  the  equilibrium  established  at  Utrecht.     The  rapid  and  immense 
aggrandisement  of  Russia,(«?)  emerging  from  Asia  into  Europe  after  the 
victories  of  Peter  the  Great — the  depression  of  Sweden — the  creation  of 
the   essentially  military  kingdom  of  Prussia,  intervening  between  the 
Northern  *and  Southern  systems  of  European  States,  rivalling 

the  power  of  Austria,  and  causing  the  strange  phenomenon  of  a 
union  between  the  Houses  of  Hapsburgh  and  Bourbon,  dividing  as  it 
were  Germany  into  two  parts,  and  preparing  in  the  opinion  of  many  the 
dissolution  of  the  Germanic  Confederation — the  increasing  maritime  pre- 
ponderance of  Great  Britain  : — these  were  natural  causes  which  deranged 
the  Balance  of  Power  established  at  Utrecht,  while  they  inflicted  no  open 
violence  upon  the  principles  of  International  Law.  But  the  wars  of  the 
Austrian  and  Bavarian  successions,  and  above  all  the  first  spoliation  of 
Poland, — all  these  transactions  in  which 

"  Oppression,  violence,  and  sword  law, 
Usurped  the  plain,"  (x) — 

shook  to  its  very  centre  the  system  of  International  Justice.  They  in- 
troduced the  worst  of  all  periods  which,  since  the  introduction  of  Chris- 
tianity, this  system  has  experienced,  viz. — 

2.  The  period  from  1789  to  1815.     The  aggressions  of  Revolutionary 
France  during  this  epoch  were  repeatedly  justified  by  reference  to  the 
rapine  committed  by  Russia,  Austria,  and  Prussia,  upon  Poland. (y)     The 
bitter  and  degrading  humiliations  which  the  two  latter  powers  underwent 
before,  by  the  heroic  exertions  of  their  people,  they  shook  off  the  yoke 
of  Napoleon,  the  bloody  fields  of  Eylau  and  Smolensko,  and  the  terrible 
necessity  which  destroyed  the  second  capital  of  Russia — these  were  the 

at  Paris,  1846-47 :  and  see  this  subject  discussed  in  a  later  part  of  this  work  under 
TREATIES. 

(w)  Koch,  ii.  92-95.  (z)  Milton,  Par.  Lost,  b.  xi.  1.  673. 

\y]  Gentz,  vol.  iv.  p.  50,  &c. 


828  PHILLIMORE     ON     INTERNATIONAL     LAW. 

legitimate  fruits  of  the  evil  doctrine  promulgated  by  those  powers,  when 
they  invaded  and  partitioned  the  kingdom  of  Poland. 

The  Treaty  of  Paris  and  the  Congress  of  Vienna  (1814-15)  concluded 
the  war  for  the  independence  of  Europe ;  and  again  the  attempt  of  one 
nation  to  exercise  universal  dominion  over  others, — an  attempt  of  a  far 
more  formidable  character  than  any  which  had  occurred  during  the  pre- 
ce<^nS  periods, — was  defeated.  *The  main  object  of  this  Treaty(z) 
was  to  restore  the  equilibrium  of  Europe  ;  but  many  of  the  means 
by  which  this  end  was  sought  or  was  said  to  be  effected,  appear  indefen- 
sible upon  the  true  and  sound  principles  of  International  Law.  A  terror 
of  the  consequences  of  the  French  Revolution,  and  of  the  dominion  of 
Buonaparte,  seems  to  have  generated  in  the  great  powers  of  Europe  the 
baneful  notion  that  the  creation  of  large  kingdoms,  by  the  absorption 
of  small  independent  States,  was  the  best  security  against  a  recurrence 
of  the  evils,  which  Europe  had  endured  for  nearly  a  quarter  of  a  cen- 
tury, (a) 

To  effect  this  purpose,  States  were,  in  several  instances,  treated  simply 
as  containing  so  many  square  miles  and  so  many  inhabitants,  little  or  no 
regard  being  paid  to  national  feelings,  habits,  wishes,  or  prejudices.  The 
annexation  of  Norway  to  Sweden,  of  Genoa  to  Sardinia,  of  Venice  to 
Austria,  and  the  diminution  of  the  territory  of  Saxony,  were  among  the 
instances  of  grievous  violations  of  International  Justice  afforded  by  this 
Treaty,  and  for  which  the  preservation  of  the  Balance  of  Power  was  the 
pretext  and  excuse  ;(&)  but  the  true  and  legitimate  application  of  that 
principle  would  have  been  a  league  of  protection  of  the  greater  with  the 
smaller  States.  The  policy  which  seeks  to  establish  one  principle  of 
International  Law  upon  the  ruin  of  others,  has  been,  and  always  must 
ke>  a  P0^cy  as  f^al  to  the  lasting  peace  of  the  *world,  as  the 
attempt  to  promote  one  moral  duty,  at  the  expense  and  by  the 
sacrifice  of  others,  is  and  must  be  fatal  to  the  peace  of  an  individual : 
"  populus  jura  naturae  gentiumque  violans,  suae  quoque  tranquillitatis  in 
posterum  rescindit  munimenta.'Vc) 

(z)  "  Les  puissances  allie*es  re"unies  dans  Tintention  de  mettre  un  terme  aux  mal- 
heurs  de  1'Europe,  et  de  fonder  son  repos  sur  une  juste  repartition  des  forces  entre 
les  e"tats  qui  la  composent." — Convention  signee  a  Paris,  le  23  Avril,  1814,  De  M. 
et  De  C.  t.  iii.  p.  8. 

(a)  Gentz,  ubi  supra. 

(b)  "  His  injuriis  (says  Bynkershoek,  speaking  of  what  he  conceived  to  be  infringe- 
ments of  International  Law  on  the  pretext  of  preserving  the  general  safety  of 
states)  praetexitur  stadium  conservandae  pacis,  quod  et  ipsum  prastexitur  injuriis, 
longe  adhuc  majoribus,  quae  potissimum  ab  aliquot  retro  annis  invaluerunt,  quum 
nempe  principes  mutuis  pactis,  de  aliorum  principum  re^gnis  et  ditionibus  ex  animi 
sententia  statuunt,  atque  si  de  re  sua  statuerent.     Has  injurias  peperit,  et  adhuc 
parit  Ratio,  quam  vocant,  Stat&s.'l — Quaest.  Jur.  Pub.  lib.  i.  c.  xxv.  s.  10. 

(c)  "  Male  autem  a  Carneade  stultitiae  nomine  justitia  traducitur.     Nam  sicut 
ipso  fatente,  stultus  non  est  civis  qui  in  civitate  jus  civile  sequitur,  etiamsi  ob  ejus 
juris  reverentiam  quaedam  sibi  utilia  omittere  debeat :  ita  nee  stultus  est  populus, 
qui  non  tanti  facit  suas  utilitates,  etpropterea  commnnia  populorum  juranegligat ; 
par  enim  in  utroque  est  ratio.     Nam  sicut  civis  qui  jus  civile  perrumpit  utilitatis 
praesentis  causa,  id  convellit  quo  ipsius  posteritatisque  suas  perpetuee  utilatis  conti- 
nentur :  sic  et  populus  jura  naturae  gentiumque  violans,  suce  quoque  tranquillitatis  in 
posterum  rescindit  munimenta." — Grotius,  Prolegomena,  18. 


INTERVENTION.  3'29 

CCCXCIX.  3.  During  the  remaining  interval,  from  the  Treaty  of 
Vienna  to  the  present  time  (1815 — 1854),  the  principle  of  the  Balance 
of  Power  has  been,  upon  several  occasions  of  great  importance,  most  for- 
mally and  distinctly  recognized  as  an  essential  part  of  the  system  of 
International  Law. 

In  the  earlier  part  of  this  period  the  abuse  of  the  principle  which 
tainted  so  injuriously  the  Treaty  of  Vienna,  continued  in  full  operation. 
An  alliance  was  formed  between  Great  Britain,  Russia,  Austria,  and 
Prussia,  to  which,  at  the  Congress  of  Aix-la-Chapelle,  in  1818,  France 
became  also  a  party ;  the  object  of  this  alliance  was  never  perhaps  very 
clearly  defined ;  but  some  of  the  contracting  parties,  at  least,  considered 
it  to  be  a  system  of  Intervention,  not  merely  to  guard  against  the  unlaw- 
ful aggrandisement  of  any  one  State,  but  also  to  prevent  the  happening 
of  such  internal  changes  in  any  existing  State,  as  these  powers  might  con- 
sider to  be  of  a  revolutionary  character,  and  therefore  as  eventually  un- 
safe to  neighbouring  States.  Great  Britain,  however,  appears  never  to 
have  put  this  construction  on  the  object  of  the  coalition ;  at  all  events, 
she  expressed  her  emphatic  dissent  from  it,  upon  the  first  occasion  of  its 
practical  application  in  the  resolutions  *of  Austria,  Russia,  and  i-#<e-r-i 
Prussia,  at  the  Congresses  of  Troppau  and  Laybach.  Great  L 
Britain  protested  then,  while  her  foreign  affairs  were  under  the  adminis- 
tration of  Lord  Castlereagh,  against  the  measures  adoped  by  those  powers 
with  respect  to  the  revolution  at  Naples  in  1820,  and  still  more  against 
the  principles  upon  which  they  were  said  to  be  founded.  She  protested 
also,  under  the  same  administration,  against  the  proceedings  of  the  Con- 
gress of  Vienna  in  1822,  at  which  the  armed  Intervention  of  France  in 
the  internal  affairs  of  Spain  was  sanctioned  by  Russia,  Austria,  and  Prus- 
sia. Subsequently,  under  the  wise  and  vigorous  administration  of  Mr. 
Canning,  Great  Britain  protested  against  any  Intervention  of  the  European 
Powers  in  the  contest  between  Spain  and  her  American  Colonies,  declar- 
ing that  she  would  consider  any  such  Intervention  by  force  or  menace  as 
a  reason  for  recognizing  the  latter  without  delay ;  and  at  the  same  time 
the  United  States  of  America  announced,  that  they  would  consider  any 
such  Intervention  as  an  unfriendly  manifestation  towards  themselves. 

A  few  years  later  Mr.  Canning,  in  the  House  of  Commons,  defended 
the  Government  for  not  having  resisted,  by  war,  the  entrance  of  the 
French  army  in  Spain,  which  he  admitted  that  the  disturbance  of  the 
balance  of  power  caused  by  this  event  would  have  justified ;  and  alluding 
to  the  recognition  of  the  American  Colonies,  which  had  then  taken  place, 
made  his  proud  and  legitimate  boasts,  "  I  called  the  New  World  into 
existence,  to  redress  th%  balance  of  the  Old." 

It  is  true  that  the  military  Intervention  of  Great  Britain  in  the  affairs 
of  Portugal  in  1826  took  place  in  order  to  discharge  the  obligations 
of  Treaties,  and  at  the  request  of  Portugal  herself,  to  protect  her  against 
the  hostile  aggressions  of  Spain ;  and  not  in  order,  directly  at  least,  to 
restore  the  Balance  of  Power.  But  in  the  Intervention  of  Great  Britain, 

See  Mably's  opinion  that  Treaties  of  Partition  are  contrary  to  International  Law 
t.  ii.  pp.  64-5,  149-150. 
(d)  Vide  post. 

AUGUST,  1854.— 22 


330  PHILLIMORE     ON     INTERNATIONAL     LAW. 

*Austria,  Russia,  Prussia,  and  France  in  the  Belgian (e)  Revolu- 
tion  of  1830,  had,  as  has  been  already  seen,  for  one  of  its  avowed 
objects,  the  establishment  of  a  just  Balance  of  Power,  and  the  security 
of  the  general  peace. 

On  the  19th  of  February,  1831,  the  intervening  powers  signed  a 
Protocol,  in  which  the  enunciation  of  this  principle  occupied  a  very 
conspicuous  place. 

"  Les  Plenipotentiaries  des  Cours  d' Autriche,  de  France,  de  la  Grande 
Bretagne,  de  Prusse,  et  de  Russie,  s'etant  assembles,  ont  porte  toute 
leur  attention  sur  les  interpretations  diverses  donnees  au  Protocole  de  la 
Conference  de  Londres,  en  date  du  20  Decembre,  1830,  et  aux  principaux 
Actes  dont  il  a  ete  suivi.  Les  deliberations  des  Plenipotentiaires  les 
ont  conduits  a  reconnaitre  unanimement,  qu'ils  doivent  a  la  position  des 
cinq  Cours,  comme  a  la  cause  de  la  paix  generale,  qui  est  leur  propre 
cause,  et  celle  de  la  civilisation  Europeenne,  de  rajppeler  id  le  grand 
principe  de  droit  public,  dont  des  Actes  de  la  Conference  de  Londres 
n'ont  fait  qu'offrir  une  application  salutaire  et  constante. 

"D'apres  ce  principe  d'un  ordre  supdrieur,  les  Traites  ne  perdent  pas 
leur  puissance,  quels  que  soient  les  changemens  qui  interviennent  dans 
1' organisation  interieure  des  peuples.  Pour  juger  de  1'application  que 
•  les  cinq  Cours  ont  faite  de  ce  meme  principe,  pour  apprecier  les  deter- 
minations qu'elles  ont  prises  relativement  a  la  Belgique,  il  suffit  de  se 
reporter  a  1'epoque  de  1'annee  1814. 

"  A  cette  epoque  les  Provinces  Beiges  efcaient  occupees  militairement 
par  1' Autriche,  la  Grande  Bretagne,  la  Prusse,  et  la  Russie ;  et  les 
droits  que  ces  Puissances  exergaient  sur  elles,  furent  completes  par  la 
renonciation  de  la  France  a  la  possession  de  ces  memes  Provinces.  Mais 
la  renonciation  de  la  France  n'eut  pas  lieu  au  profit  des  Puissances 
occupantes.  Elle  tint  a  une  pensee  d'un  ordre  plus  eleve.  Les  Puis- 
ne ^cn  Sances3  e'  1*  France  elle-meme,  egalement  desinteressees  *alors 
J  comme  aujourd'hui,  dans  leurs  vues  sur  la  Belgique,  en  garderent 
la  disposition  et  non  la  souverainete,  dans  la  seule  intention  de  faire 
concourir  les  Provinces  Beiges  a  I'etablissement  d'un  juste  equilibre  en 
Europe,  et  au  maintien  de  la  paix  generale.  Ce  fut  cette  intention  que 
presida  a  leurs  stipulations  ulterieures  j  ce  fut  elle  qui  unit  la  Belgique 
a  la  Hollande ;  ce  fut  elle  qui  porta  les  Puissances  a  assurer  des  lors 
aux  Beiges  le  double  bienfait  destitutions  libres,  et  d'un  commerce 
fecond  pour  eux  en  richesse  et  en  developpement  dlndustrie. 

"  L'union  de  la  Belgique  avec  la  Hollande  se  brisa.  Des  communica- 
tions officielles  ne  tarderent  pas  a  convaincre  les  cinq  Cours,  que  les 
moyens  primitivement  destines  a  la  maintenir  ne  pourraient  plus  ni  la 
retablir  pour  le  moment,  ni  la  conserver  par  la  suite ;  et  que  desormais, 
au  lieu  de  confondre  les  affections  et  le  bonheur  des  deux  Peuples,  elle 
ne  mettrait  en  presence  que  les  passions  et  les  haines,  elle  ne  ferait 
jaillirde  leur  choc  que  la  guerre  avec  tous  ses  desastres.  II  n'appartenait 
pas  aux  Puissances  de  juger  des  causes  qui  venaient  de  rompre  les  liens 

(e)  Hansard,  Par.  Deb.  vol.  xxviii.  pp.  1133-1163. 
Martens,  Nouv.  Eec.  t.  i.  p.  70. 


INTERVENTION.  831 

qu'elles  avaient  formes.  Mais  quand  elles  voyaient  ces  liens  rompus,  il 
leur  appartenait  d'atteindre  encore  1'objet  qu'elles  s'etaient  propose  ea 
les  formant.  II  leur  appartenait  d' assurer,  a  la  faveur  de  combinaisons 
nouvelles,  cette  tranquillite  de  1'Europe,  dont  1'union  de  la  Belgique 
avec  la  Hollande  avait  constitue  une  des  bases.  Les  Puissances  y 
etaient  imperieusement  appelees.  Elles  avaient  le  droit,  et  les  evenemens 
leur  imposaient  le  devoir,  d'empecher  que  les  Provinces  Beiges,  devenues 
independ  antes,  ne  portasscnt  atteinte  a  la  securite  gendrale,  et  a  I'equi- 
libre  JZuropeen."  (f) 

The  Intervention  of  France,  Great  Britain,  and  Russia  in  the  Greek 
Revolution  of  1828,  as  has  been  already  observed,  was  not  originally 
founded  upon  the  plea  of  preserving  the  Balance  of  Power,  but  was 
placed  upon  other  grounds^. 

*In  April,  1834,  a  Quadruple  Alliance  was  formed  between  r*At>r\-i 
France,  England,  Portugal,  and  Spain,  by  which  the  two  former  *- 
undertook  to  assist  the  two  latter  powers  in  fulfilling  a  mutual  agreement 
to  expel  Don  Miguel,  the  Pretender  to  the  throne  of  Portugal,  and  Don 
Carlos,  the  Pretender  to  the  throne  of  Spain,  from  the  territories  of  the 
two  kingdoms. 

"  In  consequence  of  this  agreement"  (it  is  said  in  the  preamble  of 
this  Treaty  of  the  Quadruple  Alliance,)  "  their  Majesties  the  Regents 
have  addressed  themselves  to  their  Majesties  the  King  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  and  the  King  of  the  French ; 
and  their  said  Majesties,  considering  the  interest  they  must  always  take 
in  the  security  of  the  Spanish  monarchy,  and  being  further  animated  by 
the  most  anxious  desire  to  assist  in  the  establishment  of  peace  in  the 
Peninsula,  as  well  as  in  every  other  part  of  Europe ;  and  His  Britannic 
Majesty  considering,  moreover,  the  special  obligations  arising  out  of  his 
ancient  alliance  with  Portugal;  their  Majesties  have  consented  to  become 
parties  to  the  proposed  engagement." 

In  August,  1834,  a  Treaty  of  additional  articles  was  concluded, 
whereby  France  undertook  to  prevent  the  importation  of  supplies  and 
ammunition  to  the  party  of  Don  Carlos  in  Spain ;  and  Great  Britain 
undertook  to  supply  arms  to  the  Spanish  Government,  and  assist  it  with 
naval  forces.  Great  Britain  permitted,  by  an  Order  in  Council,  her 
subjects  to.  engage  in  the  service  of  the  Spanish  Government,  and  a  corps 
of  volunteers  was  raised  and  commanded  by  a  British  officer.  (#) 

The  independent  existence  of  the  Turkish  Empire  at  Constantinople 
has  become,  in  the  opinion  of  all  the  principal  European  powers,  neces- 
sary to  the  preservation  of  the  Balance  of  Power  : — so  great,  and  so 
little  to  be  foretold,  have  been  the  vicissitudes  of  the  kingdoms  of  the 
world,  and  especially  of  Europe,  since  the  sixteenth  century. 

*It  is  not  indeed  true  that  Christian  Europe  requires,  as  a  con- 
dition  of  her  security,  the  existence  of  a  Mahometan  power  within 
her  boundaries ;  but  that  the  preservation  and  maintenance  of  the  general 
peace  demands  that  the  Ottoman  dominions  should  not  be  absorbed  into 

(/)  Protocols  of  Conferences  in  London  relative  to  the  affairs  of  Belgium,  art. 
i.  1830-31,  pp.  59-60;  and  State  Papers,  yol.  xviii.  p.  779,  &c. 
(y)  Wheaton's  Hist.  pp.  556,  572,  579,  583. 


332  PHILLIMORE     ON     INTERNATIONAL    LAW. 

the  territories  of  any  of  the  existing  European  communities. (7i)  It  is 
conceivable  that  Constantinople  may  again  become  the  scat  of  a  Chris- 
tian Greek  Government,  capable  of  maintaining  the  position  and  support- 
ing the  character  of  an  independent  kingdom;  and  were  such  an  event 
to  occur,  the  balance  of  power  might  be  at  least  as  well  secured  as  by 
the  present  state  of  things.  The  same  remark  applies  to  the  Pachalic  of 
Egypt,  held  under  the  suzerainete  of  the  Porte, (i)  which  could  scarcely 
become  the  possession  of  any  other  European  Sovereign  without  immi- 
nent danger  to  the  security  of  the  rest. 

During  the  epoch  now  under  discussion,  there  have  have  been  several 
Interventions  by  the  European  powers  in  the  affairs  of  Turkey. 

After  the  battle  of  Navarino,  and  the  recognition  of  the  independence 
of  Greece,  war  still  continued  between  Russia  and  Turkey,  and  was  not 
altogether  concluded  until  the  framing  of  the  Treaty  of  Adrinople  in 
1829. 

Before  the  Porte  had  recovered  from  her  losses  and  disasters,  she  was 
threatened  with  a  more  alarming  danger,  from  the  ambitious  rebellion  of 
Mehemet  Ali,  Pacha  of  Egypt.  After  the  battle  of  Koniah  in  1833,  in 
which  the  Turkish  were  utterly  defeated  by  the  Egyptian  forces,  under 
Ibrahim  Pacha,  Constantinople  itself  was  in  imminent  peril,  and  the 
r*!R91  -P01^6  requested  the  Intervention  of  Austria,  France,  and  *Eng- 
L  -1  land.  While  these  powers  undertook  a  negotiation  to  prevent 
the  further  advance  of  Ibrahim,  Russia  landed  an  army  on  the  Asiatic 
side  of  the  Bosphorus,  between  Ibrahim  and  the  capitol.  A  treaty  of 
peace  between  the  Sultan  and  the  Pacha  was  concluded  at  Keelayah, 
under  the  mediation  of  France  and  England,  in  1833,  and  a  separate 
Treaty  entered  into  between  Russia  and  the  Porte  at  Unkiar-Skellessi 
in  the  same  year,  by  which,  among  other  things,  it  was  covenanted  that 
Russia  should  assiste  the  Porte  with  a  naval  and  military  force,  when 
requested  to  do  so,  and  that  the  Porte  should,  by  way  of  reciprocity, 
close  the  Dardanelles  against  foreign  ships  at  the  request  of  Russia. 

France  protested  against  this  Treaty  as  producing  a  change  in  the  re- 
lations between  the  Ottoman  Empire  and  Russia,  which  affected  the 
interests  of  the  other  European  States.  The  duration  of  this  Treaty 
was  limited  to  eight  years;  before  that  period  had  elapsed,  war  again 
broke  out  between  the  Sultan  and  the  Pacha_of  Egypt,  who  gained  a 
decisive  victory  over  the  Turkish  troops  at  Nezib.  Shortly  afterwards 
the  whole  Turkish  fleet  deserted  to  the  Pacha.  These  events,  disturbing 
the  security  of  the  Levant,  and  endangering  the  general  peace,  the  alarm 
engendered  by  the  spirit  of  the  Treaty  of  Unkiar-Skellessi,  and  the  ex- 
clusive interference  of  Russia,  determined  the  Western  Powers  to  inter- 
vene in  this  war  of  the  two  great  divisions  of  the  Ottoman  Empire. 

Their  Intervention  was  expressly  and  carefully  founded  upon  the 

Si)  The  Porte  concluded,  on  the  21st  January,  1790,  a  treaty  against  Austria 
Russia  with  Prussia,  in  which  that  power  "  a  cause  du  prejudice  que  les 
ennemis,  en  passant  la  Danube,  ont  apporte  a  la  balance  du  pouvoir  dtsirt  et  neces- 
saire,   promet  de   declarer   la  guerre  de  toutes   ses  forces   aux  Russes   et  aux 
Autrichiens,"  &c. — Koch,  Hist,  des  Tr.  t.  iv.  p.  419. 
(i)  Vide  ante,  p.  11T. 


INTERVENTION.  333 

grounds,  that  the  present  state  of  things  disturbed  the  Balance  of  Power, 
and  thereby  the  peace  of  Europe,  and  that  the  Sultan  had  requested 
their  Intervention.  A  Convention  was  ultimately  concluded  at  London 
on  the  14th  of  July,  1840,  between  the  great  European  Powers,  exclu- 
sive of  France.  By  this  Convention  the  Sultan  conferred  on  Mehemet 
Ali  and  his  descendants  in  the  direct  line,  the  Pachalic  of  Egypt  for  life, 
with  the  title  of  Pacha  of  Acre,  and  the  command  of  the  fortress  of  St. 
Jean  d'Acre.  It  was  further  stipulated  that  Mehemet  Ali  and  his  de- 
scendants should  pay  a  certain  annual  tribute  to  the  Sultan ; —  r*lfi3l 
*that  the  Turkish  fleet  should  be  immediately  restored; — that  «- 
the  Treaties  and  Laws  of  the  Ottoman  Empire  should  be  applicable  to 
Egypt  in  the  same  manner  as  to  every  other  part  of  the  Ottoman  Em- 
pire;— that  the  military  .and  naval  forces  of  the  Pacha  should  be  con- 
sidered as  part  of  the  forces  of  the  Ottoman  Empire,  and  maintained  for 
the  service  of  the  State. 

The  foregoing  observations  were  written  nearly  three  years  ago,  with 
no  anticipation  that,  before  the  work  was  concluded,  it  would  be  neces- 
sary to  add  such  an  additional  instance,  as  is  unhappily  furnished  by  the 
present  year  (1854),  of  a  defensive  war  undertaken  to  preserve  the  equi- 
librium of  European  power,  and  to  prevent  the  aggrandisement  of  a  par- 
ticular State  by  the  absorption  of  European  Turkey  into  its  domains. 

Such  are  the  motives  alleged,  while  these  pages  are  being  written,  for 
the  war  about  to  be  waged  for  the  defence  of  European  Turkey(/)  by 
England  and  France  against  Russia.  It  would  be  indecent  in  a  work  of 
this  character  to  offer  any  opinion  on  the  merits  of  this  contemporary 
question  of  International  Law :  it  must  be  judged  of  by  the  principles 
already  laid  down. 

The  subject  however,  must  be  again  referred  to  as  we  pass  rapidly 
over  the  examples  of  Intervention  which  have  happened  during  a  very 
recent  period. 

In  1847,  England,  France,  and  Spain  intervened  in  the  internal  affairs 
of  Portugal,  at  the  request  of  the  Queen  of  that  country,  and  put  down 
by  force  the  rebellion  that  harassed  her  subjects;  but  at  the  same  time 
guaranteed  to  the  insurgents,  under  certain  conditions,  an  amnesty  for 
political  offences,  and  certain  improvements  in  the  Constitutional  Govern- 
ment. In  this  mediation  England  took  the  leading  part.(&) 

*In  1848,  France  and  England  endeavoured  jointly  to  mediate  pM«o 
in  the  disturbances  which  agitated  every  kingdom  in  the  Italian  «- 
peninsula;  and  in  1849,  the  Government  of  England  asserted  her  right 
of  intervening,  by  the  expression  of  opinion  at  least,  in  the  civil  contest 
between  Austria  and  Hungary. 0 

In  1851,  the  Governments  of  France  and  England  addressed  notes, 
the  former  to  the  Powers  who  had  signed  the  Treaty  of  Vienna,  the  lat- 
ter to  the  Germanic  Confederation,  protesting  against  the  suggested  in- 

(/)  Correspondence  respecting  the  Rights  and  Privileges  of  the  Latin  and  Greek 
Churches  in  Turkey,  presented  to  both  Houses  of  Parliament,  by  command  of  Her 
Majesty,  1854  ;  and  Le  Question  de  1'Orient,  published  at  Paris,  1853. 

(k  Annual  Register  for  1849,  vol.  Ixxxix.  p.  346,  June  12  &  13. 

(I)  Annual  Register  for  1848-9,  vol.  xc.  p.  171 ;  vol.  xci.  chap.  vi. 


334  PHILLIMORE    ON    INTERNATIONAL    LAW. 

corporation  of  Austrian  provinces,  not  being  German,  into  the  Germanic 
Confederation.  Such  an  event,  it  was  urged,  though  unconnected  with 
any  acquisition  of  new  territory,  would  clearly  affect  the  Balance  of 
Power.(m) 

Upon  the  same  principle,  on  the  2d  of  August,  1850,  Austria,  France, 
England,  Prussia,  Kussia,  and  Sweden,  put  forth  a  Protocol,  respecting 
the  succession  to  the  Danish  monarchy,  in  which  "the  maintenance  of 
the  integrity"  of  that  monarchy  was  said  "to  be  connected  with  the 
general  interests  of  the  balance  of  Europe,  and  of  high  importance  to  the 
preservation  of  peace;"  and  therefore,  at  the  request  of  the  King  of  Den- 
mark, they  put  forth  a  declaration  to  the  above  effect. (») 

The  same  Powers,  on  the  8th  of  May,  1852,  concluded  a  Treaty,  bind- 
ing themselves  to  recognise  Prince  Christian  of  Sleswig-Holstein  and  his 
heirs  male  as  the  lawful  successors  to  the  throne  of  Denmark. (0) 

In  1851,  the  doctrine  of  Intervention  was  vigorously  enforced  on  the 
South  American  Continent,  in  a  manner  well  deserving  attentive  con- 
sideration^/)) 

r,,M/»c-i  *That  portion  of  South  America  which  is  politically  and  geo- 
-"  graphically  designated  as  the  States  of  De  La  Plata,  on  account 
of  the  position  they  occupy  in  the  great  basin  of  this  river,  consists  of 
the  Argentine  Confederation  (till  lately  under  the  dominion  of  General 
Rosas),  the  Oriental  Republic  of  Uruguay,  and  Paraguay.  Paraguay 
and  Uruguay(g')  touch  the  confines  of  the  empire  of  Brazil.  Rosas  had 
for  some  time  threatened  directly  the  independence  of  Paraquay  (formerly 
a  province  of  the  Vice-Royalty  of  Buenos  Ayres),  which  he  claimed  as  a 
province  of  the  Argentine  Confederation,  while  at  the  same  time  he  mani- 
fested an  intention  of  indirectly  domineering  over  Uruguay,  the  capital 
of  which,  Monte  Video,  had  been  for  a  long  time  assailed  by  General 
Oribe,  his  ally.  The  Emperor  of  Brazil,  greatly  preferring  Paraguay 
and  Uruguay,  as  at  present  governed,  for  his  neighbours,  to  those  coun- 
tries under  the  domination  of  Rosas,  suddenly,  and  without  any  concert 
with  the  European  Powers,  intervened  with  an  armed  force  in  the  quar- 
rel between  Monte  Video  and  the  Argentine  Republic,  and  destroyed  in 
a  moment  the  power  of  Rosas,  which  had  for  many  years  embarrassed  the 
diplomacy  of  England  and  France. (r)  Brazil  has  entered  into  five  Trea- 
ties with  the  Oriental  Republic  of  Uruguay,  forming,  in  fact,  a  code  or 
system  of  general  relations  between  the  two  States,  but  especially  regu- 
lating the  mode  of  Intervention  accorded  to  Brazil  in  the  affairs  of  Uru- 
guay.(s) 

Lastly,  in  1852-3,(#)  this  doctrine  of  Intervention  to  prevent  the  un- 

(m)  See  these  notes  in  extenso,  Ann.  des  Deux  Mondes  (1851-2,)  French  memo- 
randum, p.  953;  English  note  (Lord  Cowley),  p.  959,  ''qu'il  prevoit  en  merne 
temps  qu'un  pareil  changement  derangerait  V equilibre  general "  &c. 

(n)  Annual  Register  for  1852,  p.  440. 

(o)  Ann.  des  Deux  Mondes  (1851-2),  pp.  960-1. 

(p)  Ib.  (1851-2,)  pp.  27,  865,  881,  978.  (q)  Vide  ante,  p.  144. 

(r)  Ann.  des  Deux  Mondes  (1850,)  p.  1052,  Question  de  la  Plate, 'ib.  (1851,)  pp. 
27.  865,  &c. 

(s)  See  these  treaties  in  extenso,  Ann.  des  Deux  Mondes  (1851-2,)  pp.  979-986. 

(t)  See  Correspondence  between  the  United  States,  Spain,  France,  and  England 


INTERVENTION.  335 

due  aggrandisement  of  any  one  State  by  the  absorption  of  the  territories 
of  another,  has  been  applied  upon  a  very  recent  and  important  occasion 
by  England  and  France  to  *the  American  Continent  and  the  r#Aaa-\ 
"W"est  Indies.  These  two  Governments  invited  the  North  Ameri-  L 
can  United  States  to  accede  to  a  tripartite  Treaty,  the  object  of  which 
was,  to  bind  the  three  Governments  to  renounce  both  and  hereafter  all 
intention  of  appropriating  the  Island  of  Cuba,  or,  in  orther  words,  to  ex- 
press their  determination  to  abide  by  the  status  quo  in  the  West  Indies. (M) 
The  Xorth  American  United  States  refused  to  be  parties  to  this  Treaty  ; 
but  the  right  of  Intervention,  on  the  part  of  England  and  France,  was 
steadily  proclaimed,  both  on  account  of  their  own  interests,  and  on  ac- 
count of  those  of  friendly  States  in  South  America,  as  to  the  "  present 
distribution  of  power"(tf)  in  the  American  seas. 

CCCC.  There  remains  one  other  ground  of  Intervention^)  in  the  in- 
ternal affairs  of  another  kingdom — namely,  when  the  alterations  and 
changes  made  in  the  constitution  of  that  kingdom  affect  the  Reversionary 
Rights  of  the  Interventing  Power;  for  instance,  when  a  recognized  feudal 
relation,  or  the  contingent  and  eventual  Right  of  Succession,  secured  by 
Treaty  to  the  Intervening  kingdom,  is  cut  off  by  the  alterations  and 
changes  so  made.(y) 

In  the  year  1849,  Austria  is  supposed  to  have  meditated  an  Interven- 
tion in  the  affairs  of  Tuscany  upon  this  ground,  (z) 

By  the  Treaty  of  Vienna,  in  1735,  it  was  provided  that  the  Duke  of 
Lorraine  should  succeed  to  the  last  male  heir  of  the  Medici,  the  childless 
Gaston.  This  was  a  part  of  the  negotiations,  by  which  Charles  VI.  sought 
to  secure  the  undisputed  recognition  of  Maria  Theresa,  as  successor  to 
his  dominions.  The  arrangement  guaranteed  by  almost  all  the  European 
Powers  was  as  follows  : — "  Le  Grand-Duche  de  Toscane,  apres  la  mort 
du  present  possesseur,  appartiendra  a  la  *maison  de  Lorraine,  p,, ,  fi_-, 
pour  1'indemniser  des  Duchez,  qu'elle  possede  aujourd'huy. 

"  Toutes  les  Puissances,  qui  prendront  part  a  la  pacification,  luy  en 
garantiront  la  succession  eventuelle."(a) 

The  "maison  de  Lorraine"  was  despoiled  of  its  Tuscan  possessions  by 
the  Treaty  of  Luneville  in  1801 ;  but  they  were  restored  to  it  by  the 
Treaty  of  Vienna  in  1815.  By  the  100th  Article  of  the  final  Act  of  the 
Congress,  it  is  provided  that  "  S.  A.  I.  et  R.  TArchiduc  Ferdinand 
d'Autriche  est  retabli  tant  pour  lui  que  pour  ses  heritiers  et  successeurs 
dans  tous  les  droits  de  souverainete  et  propriete  sur  le  grand-duche  de 
Toscane  et  ses  dependances  ainsi  que  S.  A.  I.  les  a  possedes  anterieure- 
ment  au  Traite  de  Luneville. — Les  stipulations  de  1'article  11  du  Traite 
de  Vienne  du  3  Octobre,  1735,  entre  1'Empereur  Charles  VI.  et  le  Roi 
de  France,  auxquelles  accederent  les  autres  Puissances,  sont  plenement 
retablies  en  faveur  de  S.  A.  I.  et  ses  descendants  ainsi  que  les  garanties 
resultantes  de  ces  stipulations."^) 

concerning  alleged  projects  of  Conquest  and  Annexation  of  the  Island  of  Cuba, 
presented  to  the  House  of  Commons,  April  11,  1853; 

(u)  Lord  Cowley's  despatch  to  Lord  John  Russell,  January  24,  1853. 

(v)  Letter  of  Lord  John  Russell  to  Mr.  Campbell,  February,  16,  1853. 

!z)  Heffters,  pp.  92-95.  (y)  Martens,  190,  cases  cited  in  note, 

z)  See  an  article  in  the  Globe,  April  4, 1849. 
a)  Wenck.  Jur.  Gent.  t.  i.  p.  3.  (b)  Martens  Rec.  de  Tr.  t.  x.  p.  424. 


336  PHILLIMORE    ON    INTERNATIONAL    LAW. 

In  this  latter  Treaty  of  Vienna  the  name  of  the  reigning  Grand  Duke 
is  substituted  for  that  of  his  House,  and  the  House,  as  distinguished  from 
the  issue  of  Ferdinand,  is  nowhere  mentioned. 

A  presumption  unfavourable  to  the  claim  of  Austria  arises  from  this 
marked  difference  in  the  language  of  the  two  Treaties;  and  the  presump- 
tion is  certainly  much  strengthened  by  the  language  of  the  98th  and  99th 
Articles  of  the  Treaty  of  1815,(c)  which  renewed  and  confirmed  in  ex- 
r*ir»T  Press  *terms  the  Rights  of  Reversion  (les  droits  de  succession  et 
J  reversion}  of  Austria  to  the  Duchies  of  Modena,  Reggio,  and  Mi- 
randola,  and  to  the  Principalities  of  Massa  and  Carrara,  and  the  Rights 
of  Reversion  of  Austria  and  Sardinia  to  the  Duchies  of  Parma,  Placentia, 
and  Guastala. 

It  may  well  have  been  forseen,  that  the  addition  of  Tuscany  to  Austria 
would  cause  a  very  material  alteration  in  the  Balance  of  Power,  and 
would  threaten  the  security  of  other  States,  while  the  absorption  of  the 
minor  principalities  into  the  kingdoms  of  Austria  and  Sardinia  would 
produce  no  such  effect. 

It  is  evident  that  any  question  with  respect  to  the  Reversionary  Rights 
of  Foreign  Princes  over  a  State  which  has  long  occupied  an  independent 
position  in  the  society  of  nations,  may  be  fraught  with  the  greatest  diffi- 
culties both  in  speculation  and  practice. (d\ 

Take  the  case  of  Tuscany  for  an  example,  on  the  supposition  that 
the  claim  of  Austria  was  well  founded  on  the  letter  of  the  Treaty,  (e) 

(e)  "Art.  XCVIII. — S.  A.  R.  1'Archiduc  Frai^ois  d'Est,  ses  heritiers  et  succes- 
seurs,  possederont  en  toute  proprie'te  et  souverainet6  les  duches  de  Modene,  de 
Reggio,  et  de  Mirandole  dans  la  meme  e"tendue  qu'ils  etaient  a  1'epoque  du  traite 
de  Campo-Formio. 

"  S.  A.  R.  1'Archiduchesse  Marie  Beatrix  d'Est,  ses  heYitiers  et  successeurs, 
possederont  en  toute  souverainete  et  proprie'te',  le  duche"  de  Massa  et  la  principautd 
de  Carrara,  ainsi  que  les  fiefs  impe'riaux  dans  la  Lunigiana.  Ces  derniers  pour- 
ront  servir  a  des  ichanges  ou  autres  arrangements  de  gre"  a  gre"  avec  S.  A.  I.  le 
Grand-Due  de  Toscane,  selon  la  convenance  re"ciproque. 

"Les  droits  de  succession  et  reversion  6tablis  dans  les  branches  des  archiducs 
d'Autriche,  relativement  aux  duchess  de  Modene,  de  Reggio,  et  Mirandole,  aiusi 
que  des  principaute's  de  Massa  et  Carrara,  sont  conserve's. 

"  Art.  XCIX. — Sa  Majeste"  1'Impe'ratrice  Marie-Louise  poss6dera  en  toute  pro- 
prie'te' et  souverainete,  les  duches  de  Parme,  de  Plaisance,  et  de  Guastalla,  a  1'excep- 
tion  des  districts  enclaves  dans  les  e"tats  de  S.  M.  I.  et  R.  Apost.  sur  la  rive  gauche 
du  P6. 

"  La  reversibilite  de  ces  pays  sera  determine  de  commun  accord  entre  les  conrs 
d'Autriche,  de  Russie,  de  France,  d'Espagne,  d'Angleterre,  et  de  Prusse,  toutefois 
ayant  egard  aux  droits  de  reversion  de  la  maison  d'Autriche  et  de  S.  M.  le  R-oi  de 
Sardaigne  sur  les  dits  pays." — Martens,  Rec.  de  Tr.  t.  x.  p.  423. 

(d )  "  C'est  incontestable  qu'une  nation  change  a  son  gr6  ses  lois  fondamentales." — 
Mably,  t.  ii.  p.  138. 

(e)  "  La  nation  peut,  par  la  meme  raison,  faire  renoncer  une  branche  qui  s'etablit 
ailleurs,  une  fille  qui  epouse  un  prince  etranger.     Ces  renonciations,  exigees  ou 
approuve"es  par  l'6tat,  sont  tres-valides,  puisqu'elles  sont  equivalentes  h  une  loi 
que  I'e'tat  ferait  pour  exclure  ces  memes  personnes  qui  ont  renonce,  et  leur  poste"- 
rite".     Ainsi  la  loi  d'Angleterre  a  rejet6  pour  toujours  tout  heritier  catholique 
romain.     'Ainsi  la  loi  le  Russie,  fait  au  commencement  de  regne  d'ELiZABETH, 
exclut-elle  tres  prudemment  tout  heritier  qui  posse'derait  une  autre  monarchic ; 
ainsi  la  loi  de  Portugal  rejette-t-elle  tout  etranger  qui  serait  appel!6  a  la  couronne 
par  le  droit  du  sang.' — (Esprit  des  Lois,  1.  xxvi.  c.  xxiii.  ou  Ton  peut  voir  de  tres- 
bonnes  raisons  politiques  de  ces  dispositions.)     Des  auteurs  celebres  tres-savants 
d'ailleurs  et  tres-judicieux,  ont  done  manque  les  vrais  principes  en  traitant  des 


INTERVENTION.  337 

Suppose  that  a  State,  having  occupied  for  *a  long  period  the 
position  of  a  free  and  independent  nation  in  the  society  of  other 
States,  thinks  fit  to  secure  its  constitution,  and  to  pass  a  fundamental  law, 
similar  to  that  by  which  Great  Britain  excluded  James  II.  and  his  de- 
scendants from  her  throne,  that  no  Prince  of  a  certain  race  shall  be 
henceforth  their  ruler;  or  a  fundamental  law  similar  to  that  which  was 
established  by  Russia  in  the  reign  of  her  Elizabeth,  that  the  crown  of 
their  country  shall  never  be  worn  by  the  Sovereign  of  another  country ; 
can  it  be  denied  that  the  exercise  of  such  a  power  is  inherent  in  the  nature 
of  an  independent  State  ?  Third  Powers,  indeed,  must  recollect  that 
the  obligation  of  Treaties  is  as  important  a  maxim  of  International  Law 
as  the  free  agency  of  independent  States;  but  with  respect  to  the  nation 
itself,  it  remains  certainly,  very  difficult  to  reconcile  her  character  of  in- 
dependence with  the  impossibility  of  exercising  one  of  the  most  import- 
ant attributes  belonging  to  it. 

It  is  to  be  hoped  that  the  notion,  and  the  term  of  "  Patri- 
monial  *States,"  are  banished  for  ever  from  the  theory  and  prac- 
tice  of  International  Law,(/)  and  that  the  attempt  will  never  again  be 
made  to  give  to  the  Sovereign  of  one  independant  State  the  Rever- 
sionary Right  of  succeeding  to  the  throne  of  another. 

COCCI.  There  yet  remains(^)  to  be  discussed  the  question  of  Inter- 
vention on  the  ground  of  Religion, — a  question  which  has  assumed,  from 
the  events  which  are  now  happening,  the  character  of  importance  and 
magnitude  which,  the  possible  consequences  duly  considered,  it  will  be 
difficult  to  exaggerate. 

"  So  familiar,  and  as  it  were  so  natural,  to  man,  is  the  practice  of  vio- 
lence, that  our  indulgence  allows  the  slightest  provocation,  the  most  dis- 
putable right,  as  a  sufficient  ground  of  national  hostility.  But  the  name 
and  nature  of  a  holy  war  demands  a  more  vigorous  scrutiny ;  nor  can 
we  hastily  believe,  that  the  servant  of  the  Prince  of  Peace  would  unsheath 
the  sword  of  destruction,  unless  the  motive  were  pure,  the  quarrel  legi- 
timate, and  the  necessity  inevitable. "(A) 

renonciations.  Us  ont  beaucoup  parle*  des  droits  des  enfana  ne"s  ou  a  naitre,  de  la 
transmission  de  ces  droits,  etc.  II  fallait  considerer  la  succession,  moins  comme 
nne  proprie'te'  de  la  famille  regnante  que  comme  une  loi  de  1'etat.  De  ce  principe 
lumineux  et  incontestable  decoule  avec  facility  toute  la  doctrine  des  renonciations. 
Celles  que  1'^tat  a  exige"es  ou  approuve"es  sont  valides  et  sacre"es ;  ce  sont  des  lois 
fondamentales :  celles  qui  ne  sont  point  autorise"es  par  I'e'tat,  ne  peuvent  etre  obli- 
gatoires  que  pour  le  prince  qui  les  a  faites ;  elles  ne  sauraient  nuire  a  sa  poste'rite' ; 
et  lui-meme  peut  en  revenir,  au  cas  que  l'e"tat  ait  besoin  de  lui  et  1'appelle,  car  il 
se  doit  a  un  peuple  qui  lui  avait  commis  le  soin  de  son  salut.  Par  la  meme  raison, 
le  prince  ne  peut  legitimement  renoncer  a  contre-temps  au  dommage  de  I'e'tat,  et 
abandonner  dans  le  danger  une  nation  qui  s'etait  remise  entre  ses  mains." — Vattel, 
1.  i.  c.  5,  s.  62. 

(/)  Rotteck,  Staats-Lexicon,  "  Garantie"  (vol.  vi.  p.  264,)  mentions  the  Bour- 
bon family  compact  of  1761  as  a  proof  of  imperfect  acquaintance  with  the  true 
principles  of  International  Law,  inasmuch  as  by  it  the  people  were  treated,  "  als 
das  blosse  Pertmenzstuck  des  regierenden  Hauses." 

See,  too  Ompteda,  vii.  n.  a. 

( g)  Most  of  the  remarks  in  the  text  which  follow  on  this  subject  will  be  found 
in  a  pamphlet  (1853),  entitled  Russia  and  Turkey,  &c.,  by  the  author  of  this 
work. 

(h)  Gibbon's  Decline  and  Fall  of  the  Roman  Empire,  vol.  ii.  c.  Ix. 


338  PHILLIMORE    ON    INTERNATIONAL    LAW. 

This  opinion  of  the  celebrated  historian  of  Christian  Constantinople 
whatever  may  have  been  the  spirit  in  which  it  was  uttered — appears  to 
rest  upon  a  foundation  of  truth. 

It  was  intended,  we  need  not  stop  to  inquire  with  what  justice,(t)  to 
.-^ ,  -... ,  censure  the  earliest  European  invasion  of  the  *dominions  of  the 
•I  Turk,  the  first  Religious  war  waged  by  Christian  Princes  against 
the  disciples  of  Mahomet. 

The  Emperor  of  Russia  proclaims  that  the  present  war  between  Rus- 
sia and  the  Porte  is  a  Religious  war.  (A) 

If  there  be  any  truth  in  the  doctrines  laid  down  in  the  preceding 
pages  of  this  work,  there  certainly  are  principles  of  International  Law 
by  which  the  claim  of  Russia  upon  Turkey  must  be  tried,  and  which 
are  not  perhaps  either  difficult  to  discover,  or  hard  to  apply. 

We  have  seen  upon  what  principles  other  kinds  of  Intervention  have 
been  justified.  The  question  of  Religious  Intervention  naturally  divides 
itself  into  two  parts. 

First,  whether  identity  of  religious  faith,  with  a  certain  number  of 
the  subjects  of  another  State,  whose  rulers  profess  a  different  faith,  has 
ever  been  held,  or  ought  in  principle  to  be  held  as  warranting  the  Inter- 
vention of  a  Foreign  State  on  behalf  of  those  subjects  with  whom  it 
has  the  impalpable,  but  stringent  bond  of  a  common  religion.  Secondly, 
if  Intervention  be  justifiable  on  this  ground,  what  kind  of  intervention  ? 
— that  of  remonstrance,  carried,  if  necessary,  to  the  length  of  a  refusal 
to  maintain  an  intercourse  with  the  oppressor  of  your  brethren  in  the 
faith  ?  or  the  ultima  ratio,  the  commencement  of  actual  hostilities  against 
the  State  which  denies  your  title  to  interfere  with  her  jurisdiction  over 
her  citizens  ? 

With  respect  to  any  right  of  Intervention  on  the  ground  of  similarity  of 
religious  faith,  there  is,  in  limine,  a  distinction,  perhaps  not  unimpor- 
tant to  be  taken.  Intervention  may  be,  and  has  been,  claimed  by  one 
Christian  State,  in  the  affairs  of  another  on  behalf  of  a  particular 
body  of  Christians,  professing  a  form  of  Chrstianity  identical  with 
that  of  the  Intervening  State,  but  different  from  that  of  the  State  of 
r*479T  wkich  *they  are  subjects.  Again,  Intervention  may  be  claimed 
J  in  the  affairs  of  an  Infidel  State  on  behalf  either  of  Christians 
generally,  or  of  &  particular  body  of  Christians.  This  latter  is  the  kind 
of  Intervention  now  claimed  by  Russia  in  the  jurisdiction  of  the  Porte 
over  the  Christian  subjects  in  her  dominions ;  and  it  is  a  species  of 
Intervention  which,  according  to  her  present  claim,  Russia  by  virtue  of 
her  Protectorate  of  the  Greek  Church,  has  been  accustomed  to  exercise, 

(t)  Fleury,  Hist.  Eccles.  t.  xii.  Sixieme  Discours,  111.  "  Je  ne  vois  point  que 
1'on  ait  mis  alors  en  question,  si  cette  guerre  e"toit  juste  :  tous  les  Chretiens  d'orient 
et  d'occident  le  supposoient  e"galement.  Toutefois  la  difference  de  religion  n'est 
pas  une  cause  sufflsante  de  guerre,"  &c.  "  Les  princes  Chretiens  ont  cru  de  tout 
terns  Stre  en  droit  de  proteger  les  Chretiens  etrangers  opprimts  par  leurs  souve- 
rains."  On  this  ground,  he  says  Theodosius  the  younger  refused  to  deliver  up  a 
Persian  Christian  to  the  King  of  Persia ;  and  the  Patriarch  of  Jerusalem  sent 
through  Peter  the  Hermit  letters  of  entreaty  for  aid  to  Pope  Urban. 

(k)  Correspondence  respecting  the  Rights  and  Privileges  of  the  Latin  and  Greek 
Churches  in  Turkey,  presented  to  both  Houses  of  Parliament  by  command  of  Her 
Majesty,*  1854. 


INTERVENTION.  339 

and  which  is  now  sought  to  be  exercised  merely  for  the  purpose  of 
securing  to  the  Greek  Church  rights  conceded  to  her  ab  antique  by  the 
Porte. 

CCCCII.  It  would  seem  that  three  propositions  are,  by  implication, 
maintained  in  this  claim. 

1.  That  the  demand  is  sanctioned  by  the  analogy  derivable  from  the 
precedents  of  Christian  Intervention  in  other  Christian  States  on  behalf 
of  particular  bodies  of  Christians. 

2.  That  the  right  of  Christian  Intervention  on  religious  grounds  in  a 
Mahometan  State,  rests  upon  an  obviously  stronger  foundation. 

3.  That  the  rights  which  the  Russian  Intervention  is  intended  to 
secure  are   rights  granted   by  the   Porte,  ab  antique,   to  the   Greek 
Church. 

CCCCIIL  As  to  the  "first  of  these  propositions  : — The  practice  (if  it 
can  be  called  such)  of  Intervention  by  one  Christian  State  on  behalf  of 
the  subjects  of  another  Christian  State  upon  the  ground  of  Religion, 
dates  from  the  period  of  the  Reformation.  It  could  scarcely,  indeed, 
have  had  an  earlier  origin.  The  abstract  principle  of  this  kind  of  Inter- 
vention has  derived  positive  force  from  being  embodied  in  various  impor- 
tant Treaties. 

The  Treaties  having  for  their  objects  to  secure  the  peaceable  profession 
of  religion  are  of  two  kinds  : — first  those  which  concern  the  exercise  of 
religion  (devotio  domestica)  of  native  subjects  of  the  Intervening  State 
commorant  in  a  foreign  land;  secondly,  those  which  concern  the  religion 
of  foreigners  not  its  subjects. 

The  great  Treaty  of  Westphalia,  in  its  general  language  respecting 
Germany,  established,  as  a  maxim  of  public  law,  *that  there 
should  be  an  equality  of  rights  between  the  Roman  Catholic 
and  Protestant  religions ;  a  maxim  renewed  and  fortified  by  the  Ger- 
manic Confederation  of  1815.  In  these  instances,  it  is  true,  the  several 
states  to  which  this  stipulation  related  were  all  members  of  one  Con- 
federation, though  individully  independent  of  each  other.  But  the  pre- 
cedent does  not  stop  here ;  for,  passing  by  the  Interventions  of  Elizabeth, 
Cromwell,  and  even  Charles  II. ,  on  behalf  of  foreign  Protestants,  and 
going  back  no  later  than  1690,  we  find  in  that  year  Great  Britain  and 
Holland  intervening  in  the  affairs  of  Savoy,  and  obtaining  from  that 
kingdom  a  permission  that  a  portion  of  the  Sardinian  subjects  might 
freely  exercise  their  religion. (&) 

In  the  negotiations  which  preceded  the  Treaty  of  Utrecht  (1714,)  our 
Queen  Anne  stipulated  with  France  that  in  return  for  the  permission 
accorded  to  French  subjects  to  sell  their  immovable  property  in  the 
North  American  Colonies  recently  conquered  by  Great  Britain,  his  Most 
Gracious  Majesty  should  release  from  the  galleys  the  French  Protestants, 
who  had  been  confined  there  solely  on  account  of  their  religion.  Fur- 
ther than  this,  we  learn  from  Lord  Bolingbroke's  letters,  (I)  foreign 
interference  could  not  be  extended ; — he  suggests,  indeed,  that  France 

(&)  Schmauss,  vol.  i.  p.  1093. 

(I)  Bolingbroke's  Letters,  vol.  iv.  pp.  121,  171-2,  459. 


340  PHILLIMOIIE     ON    INTERNATIONAL    LAW. 

might  be  tempted  to  retort,  and  require  some  mitigation  of  the  heavy 
penalties  under  which  the  Irish  Roman  Catholic  subjects  of  Queen  Anne 
were  then  suffering. 

Sweden  interfered  in  1707  on  behalf  of  the  Protestants  of  Poland. 

The  Treaties  of  Velau.(m)  1657,  of  Oliva,(n)  1660,  of  Nimeguen,(o) 
1679,  of  Ryswick,(p)  1698,  of  Utrecht,^)  1714,  of  Breslau,(?-)  1742, 
r*47/n  may  a^  ^e  enumerated  as  instances  *of  Roman  Catholic  Inter- 
-1  vention  on  behalf  of  Roman  Catholic  subjects,  in  countries  ceded 
to  Protestant  sovereigns  —  an  Intervention  which,  it  should  be  remem- 
bered, was  almost  invariably  invoked  by  the  inhabitants  within  the 
country. 

It  appears,  therefore,  that  Intervention  by  one  Christian  State  on 
behalf  of  the  subjects  of  another  upon  the  ground  of  Religion,  has, 
under  certain  circumstances,  been  practised,  and  cannot  be  said,  in  the 
abstract,  to  be  a  violation  of  International  Law.  But  what  kind  of 
Intervention  ?  By  remonstrance,  by  stipulation,  by  a  condition  in  a 
Treaty  concluding  a  war  waged  upon  other  grounds. 

It  may,  perhaps,  be  justly  contended  that  the  principle  might  be 
pushed  further  ;  and  that  in  the  event  of  a  persecution  of  large  bodies 
of  men,  on  account  of  their  religious  belief,  an  armed  Intervention  on 
their  behalf  might  be  as  warrantable  by  International  Law,  as  an  armed 
Intervention  to  prevent  the  effusion  of  blood  and  protracted  internal 
hostilities. 

It  is,  however,  manifestly  unsafe  to  contemplate  these  extreme  cases 
of  exception  from  the  sound  general  rule  of  non-interference  in  the 
domestic  legislation  of  Foreign  States.  The  duty  of  such  non-interfer- 
ence is  clear  ;  it  should  not  be  turned  into  a  doubt.  Therefore  it  is, 
that  no  writer  of  authority  upon  International  Law  sanctions  such  an 
Intervention,  except  in  the  extreme  case  of  a  positive  persecution  inflicted 
avowedly  upon  the  ground  of  religious  belief.  Vattel,  himself  a  Pro- 
testant, was  not  at  all  disposed  to  underrate  the  right  of  Intervention  of 
Foreign  Powers  on  behalf  of  their  co-religionists  in  other  countries  : 
his  opinion,  therefore,  which  is  in  accordance  with  that  which  has  been 
here  expressed,  deserves  the  most  respectful  consideration.  (s) 

I 


to  find  any  writer  upon  International 

Law  who  has  ever  expressed  a  different  opinion  ;  though  not 
uncommonly  they  close  their  remarks  on  this  subject  by  observing  on 
the  manner  in  which  the  exceptional  use  of  Intervention  upon  religious 
grounds  has  been  abused  in  practice. 

Thus  the  accurate  and  careful  Martens  observes  : 

"  Toutes  les  guerres  auxquelles  la  religion  a  servi  de  motif  ou  de 
pre'texte  ont  fait  voir,  1°  que  jamais  la  religion  n'a  ete  le  seul  motif 
pour  lequel  les  puissances  etrangeres  sont  entrees  en  guerre;  2°  que 
lorsque  la  politique  s'accorde  avec  les  interets  de  leur  religion,  elles  ont 
effectivement  soutenu  la  cause  de  celle-ci;  3°  mais  que  toujours  le  zele 

(m)  Art.  xvi.  (ri)  Art.  ii.  (o)  Art.  ix.  (p)  Art.  iv. 

(q)  Art.  xxiii.  (r)  Art.  vi. 

(s)  "Du  Droit  de  stirete*,  et  des  effets  de  la  souverainete"  et  de  rinde"pendance  des 
Nations,"  Vattel,  Droit  des  Gens,  t.  i.  p.  311,  s.  57,  59,  62. 


INTERVENTION.  341 

religieux  a  cede  aux  motifs  de  politique;  4°  et  que  plus  d'une  fois 
meme  celle-ci  a  entraine  a  des  demarches  directement  opposees  aux 
interets  de  leur  religion. "(<) 

So  much  for  the  doctrine  of  Intervention  in  matters  of  religion 
between  Christian  States. 

CCCCIV.  With  respect  to  the  second  proposition : 

We  now  arrive  at  the  consideration  of  Christian  Intervention  upon 
the  same  subject  with  Mahometan  States.  The  converse  of  this,  viz., 
Mahometan  Intervention  with  Christian  States,  has,  it  is  believed,  never 
yet  arisen  in  practice,  but  it  would  be  subject  on  principle  to  the  same 
law.(w) 

Is  the  rule  of  law  altered  by  the  fact  that  the  persons  in  whose  behalf 
the  right  of  Intervention  is  claimed,  are  the  subjects  of  a  Mahometan 
or  Infidel  State  ? 

The  true  answer  seems  to  be  that  the  rule  is  not  changed,  but  that 
there  is  a  much  wider  field  for  the  application  of  the  exceptional  princi- 
ple of  interference. 

For  some  time  after  the  conquest  of  Constantinople  (1453^  grave 
*doubts  were  entertained  by  the  nations  of  Christendom  as  to  r^yp-i 
the  lawfulness  of  any  specific  intercourse  with  the  Sultan.  It  L 
was  not  till  after  the  Treaty  of  Constantinople  in  1720  that  the  Russian 
minister  was  permitted  to  reside  at  Constantinople ;  and  directly  relations 
between  the  Roman  Catholic  Sovereigns  and  the  Porte  can  scarcely  be 
said  to  have  an  earlier  date  than  the  end  of  the  eighteenth  century.(x) 
Even  after  the  lapse  of  nearly  four  centuries,  at  the  Congress  of  Vienna, 
1815,  the  Ottoman  Empire  was  not  represented,  nor  was  it  concluded  in 
the  provisions  of  positive  public  law  contained  in  the  Treaty  which  was 
the  result  of  the  Congress. 

CCCCV.  With  respect  to  the  third  proposition: 

From  the  period  of  the  permanent  settlement  of  the  Turk  in  Europe, 
all  the  Christian  Powers  have  endeavoured  to  obtain,  and  have  by 
degrees  succeded  in  obtaining,  a  jurisdiction  over  their  own  subjects  in 
Turkey  through  the  medium  of  Consuls.  Moreover,  Roman  Catholic 
Powers  have  obtained  certain  privileges,  both  with  respect  to  the  access 
of  their  own  subjects  to  the  Holy  Places  of  Palestine,  and  with  respect 
to  the  Latin  Church  there.  At  first  these  privileges  were  granted  to 
some  favoured  European  Powers,  and  especially  to  France,  under  whose 
flag  other  Christian  Powers  sought  protection. (#)  The  Treaty  recently 
referred  to  by  French  authorities,  between  Sultan  Achmet  and  Henry 
IV.  of  France,  concluded  in  1604,(z)  is  the  model  Treaty,  so  to  speak, 
upon  this  subject.(a) 

(t)  Martens,  Precis  du  Droit  des  Gens,  t.  i.  p.  261. 

(u)  There  is  an  article  in  the  Treaty  of  Constantinople,  between  Russia  and  the 
Porte  in  1779,  in  which  Russia  stipulates  that  the  Porte  shall  perform  certain  reli- 
gious ceremonies  on  behalf  of  the  Khan  of  Tartary. 

(x)  Miltitz,  Manuel  des  Consuls,  t.  ii.  p.  1571. 

(y)  In  1534,  Francis  I.  made  an  alliance  with  the  Sultan  Soliman  against  Charles 
V.,  and  from  that  time  a  close  intercourse  has  subsisted  between  France  and  the 
Porte.  Vide  post,  COMITY. 

(0)  Schmauss,  t.  i.  p.  430. 

(a)  "Art.  IV. — Que  deVenetiens  en  Anglois  en  lales  Espagnols,  Portugais,  Cat- 


842  PIIILLIMORE     ON    INTERNATIONAL    LAW. 

To  this  Treaty  succeeded  one  in  1673 ;  but  the  last  and  *most 
important  Treaty  was  in  1704.  It  related  to  the  two  subjects : 
1.  The  Holy  Places.  2.  The  general  protection  of  the  Christian  Reli- 
gion. 

With  respect  to  the  Holy  Places  there  are  various  specific  provi- 
sions.^) 

With  respect  to  the  general  question  of  the  Christian  worship  and 
religion,  the  provisions  are  as  follow : — 

"  Les  deux  Ordres  de  Religieux  Fran§ois  qui  sont  a  Galata,  savoir  les 
Jesuites  et  les  Capucins,  y  ayant  deux  Eglises,  qu'ils  ont  entre  leurs 
mains  ab  antique,  restorent  encore  entre  leurs  mains,  et  ils  en  auront  la 
possession  et  jouissance  :  Et  comme  1'une  de  ces  Eglises  a  ete  brulee  elle 
sera  rebatie  avec  permission  de  la  justice,  et  elle  restera  comme  par  ci- 
devant  entre  les  mains  des  Capucins,  sans  qu'ils  puissent  etre  inquietes 
a  cet  egard.  On  n'inquietera  pas  non  plus  les  Eglises  que  la  Nation 
Frangoise  a  a  Smyrne,  a  Syde,  a  Alexandrie,  et  dans  les  autres  a 
r*47«n  *Echelles  j  et  1'on  n'exigera  d'eux  aucun  argent  sous  ce  pre- 
'8J  texte."(c) 

"  On  n'inquietera  pas  les  Francois  quand  dans  les  bornes  de  leur  etat, 
ils  liront  1'Evangile  dans  leur  Hopital  de  G-alata.'Y^) 

An  unquestionable  authority  upon  the  nature  and  character  of  the 
French  Protectorate  in  the  East,  appears  to  be  furnished  by  the  Diplo- 
matic Memoirs  of  Monsieur  de  Saint- Priest.  He  was  ambassador  from 
the  court  of  France  at  Constantinople  from  1768  to  1785  ;  he  describes 
the  Protectorate  exercised  by  the  monarchs  of  France  over  the  Roman 
Catholics  of  the  Levant,  in  these  words  : 

"  On  a  decore  le  zele  de  nos  Rois  de  1'expression  de  protection  de 
la  Religion  Catholique  en  Levant ;  mais  elle  est  illusoire,  et  sert  a  egarer 
ceux  qui  n'approfondissent  pas  la  chose.  Jamais  les  Sultans  n'ont  eu 
seulement  1'idee  que  les  Monarques  Frangais  se  crussent  autorises  a 

telans,  Ragusois,  Genevois,  Anconitains,  Florentins  et  ge"ne"ralement  toutes  autres 
nations  quelles  qu'elles  soient,  puissent  librement  venir  trafiquer  par  nos  Pais,  sous 
1'aveu  et  seurete"  de  la  Banniere  de  France,  laquelle  ils  porteront  comme  leur  sauve- 
garde,  et  de  cette  fa9on  ils  pourront  aller  et  venir  trafiquer  par  les  lieux  de  notre  Em- 
pire comme  ils  y  sont  venus  d'Anciennete,  obeissant  aux  Consuls  Francois,  qui  resi- 
dent et  demeurent  par  nos  Havres  et  Echelles ;  voulons  et  entendons  qu'en  usant 
ainsi  ils  puissent  trafiquer  avec  leurs  vaisseaux  et  gallions  sans  etre  inquires,  et 
ce  seulement  taut  que  ledit  Empereur  de  France  conservera  notre  amitie  et  ne 
contreviendra  a  celle  qu'il  nous  a  promise.  Voulons  et  commandons  aussi  que  les 
sujets  dudit  Empereur  de  France,  et  ceux  des  Princes  ses  amis  Allies  et  Confocderes, 
puissent  sous  son  aveu  et  protection  venir  librement  visiter  les  Saints  Lieux  de 
Jerusalem,  sans  qu'il  leur  soit  fait  ou  donne  aucun  emp6chement.  De  plus  pour 
1'honneur  et  amitie  d'icelui  Empereur  nous  voulons  que  les  Religieux  qui  demeu- 
rent en  Jerusalem  et  servent  1'Eglise  de  Coumame  (c'est  a  dire  le  saint  sepulcre 
de  Notre  Seigneur  Jesus  Christ)  y  puissent  demeurer  aller  et  venir  seurement  et 
sans  aucun  trouble  et  detourbier,  et  y  soient  bien  rec,us,  proteges,  aides  et  secourus 
en  la  consideration  susdite." — Trait6  entre  Henri  IV.  Roy  de  France  et  le  Sultan 
Achmet,  de  FAn.  1604,  Schmauss,  t.  i.  p.  430. 

(b)  Capitulations  ou  Trait6s  Anciens  et  Nouveaux,  entre  la  Cour  de  France  et 
la  Porte  Ottornane,  renouvelle's  et  augmente's  1'An  de  J.  C.  1740,  et  de  1'Egire  1153, 
art.  i.  xxxii.  xxxiii.  xxxiv.  Ixxxii. — Wenck.  Cod.  Jur.  Gent,  t.  i.  p.  538. 

(c)  Wenck.  Cod.  Jur.  Gent.  t.  i.  p.  555 :  Capitulations,  &c.,  art.  xxxv. 

(d)  Ib.  art.  xxxvi.  p.  556. 


INTERVENTION.  343 

s'immiscer  de  la  Religion  des  sujets  de  la  Porte. — ( II  n'y  a  point  de 
Prince,  dit  fort  sagement  un  de  nos  predecesseurs,  M.  le  Marquis  de 
Bonnat,  dans  un  Memoire  sur  cette  matiere,  quelque  etroite  union  qu'il 
ait  avec  un  autre  Souverain,  qui  lui  permette  de  se  meler  de  la  Religion 
de  ses  sujets.  Les  Turcs  sont  aussi  delicats  que  d'autres  la-dessus/ 

"  II  est  aise  de  comprendre  que  la  France  n'ayant  jamais  traite  avec 
la  Porte  qu'a  titre  d'amitie,  n'a  pu  lui  imposer  des  obligations  odieuses 
de  leur  nature.  Aussi  le  premier  point  de  mes  instructions  me  prescri- 
vait  d'eviter  tout  ce  qui  pourrait  causer  de  1'ombrage  a  la  Porte  en  don- 
nant  trop  d'extension  aux  capitulations  en  matiere  de  la  Religion. "(e) 

*The  true  doctrine  of  International  Law  upon  this  subject,  r^^g-i 
could  not  be  more  fairly  or  more  correctly  expressed,  than  in  the  «- 
important  citation  which  Jias  just  been  made.  And  it  must  be  remem- 
bered, that  no  single  Treaty  can  be  pointed  out  between  the  Porte  and 
France,  any  more  than  between  the  Porte  and  Russia,  in  which  that  doc- 
trine has  ever  been,  in  the  slightest  degree,  violated. 

The  Russian  Protectorate  of  the  Greek  Church,  which  is  now  claimed, 
must  be  of  comparatively  recent  date.  It  was  not  till  about  the  year 
1677,  that  the  Russians  and  the  Turks  were  brought  into  actual  contact 
with  each  other.  Count  Nesselrode  refers  to  the  Treaty  of  Kaynardgi 
(1774)  as  containing  the  record  of  the  Right  of  Intervention  now  claimed 
by  Russia,  and  also  by  the  Treaty  of  Adrinople  (1829)  as  confirmatory 
of  the  stipulations.  Here,  then,  we  have  tangible,  accessible  references, 
and  not  shadowy  allusions  to  undefined,  unrecorded  concessions.  The 
earlier  Treaty  of  Belgrade  (1739)  might  have  also  been  referred  to.  It 
is  of  great  importance  to  study  the  ipsissima  verla  of  these  Treaties,  and 
see  whether  their  letter  or  their  spirit  sustain  the  Russian  demand. 

The  eleventh  Article  of  the  Treaty  of  Belgrade,  concluded  between  the 
Empress  Anne  of  Russia  and  the  Sultan  Mahmud,(/)  relates  to  the  free 
access  of  Russia  to  the  Holy  Places.  Austria  concluded  at  Belgrade,  at 
the  same  time,  a  Treaty  containing  similar  provisions. 

The  Treaty  of  Kaynardgi  (or  Chiusciuc  Cainargi),  to  which  the  Em- 
peror of  Russia  has  especially  referred  as  the  foundation  of  his  claim, 
was  concluded  in  the  year  1774,  between  Russia  and  the  Porte.  The 
articles  of  it  which  refer  to  the  present  subject  are  here  given  at  length. 

*ART  VII.(0)  ART.  VII.  [*480] 

"La  FulgidaPortapromette  tmaferma  "  La  Sublime  Porte  promet  de  proteger 
protezione  alia  Religione  Christiana  e  constamment  la  religion  Chre"tienne  et 

(e)  Moniteur,  3rd  June,  1853. — L'Univers,  4th  June,  1853.  It  is  also  referred  to 
by  M.  Drouyn  de  Lhuys  in  his  second  circular. 

Vide  ante,  papers  referred  to,  note  (&),  p.  471. 

France  has  subsequently  explained  with  distinctness  that  she  only  claims  a  pro- 
tectorate over  French  Roman  Catholic  subjects. 

(/)  Acta  Pacis  Belgradi  inter  Annam  Russiae  Imperatricem  et  Sultanum  Ottom. 
Mahmud.  Traduction  du  Traite"  de  Paix  de  Belgrade  entre  la  Russie  et  la  Porte, 
art.  xi. 

(g)  Articoli  della  perpetua  Pace  tra  1'Impero  di  tutte  le  Russie  e  la  Porta-Otto- 
mana,  conchiusa  nel  Campo  presso  la  Citta  di  Chiusciuc  Cainargi,  distante  4  leghe 
della  citta  di  Silistria.  Traite"  de  Paix  perpetuelle  et  d'amitie",  entre  1'Empire  de 
Russie  et  le  Porte  Ottomane,  conclu  le  10  Juillet  dans  la  tente  du  Commandant  en 


344        PHILLIMOEE     ON     INTERNATIONAL     LAW. 


alle  Chiese  di  quella ;  pertnette  ancora  a 
Ministri  dell'  Imperial  Corte  di  Russia  di 
fare  in  ogni  occorrenza  varie  rappresen- 
tanze  alia  Porta  a  favore  della  sotto  men- 
tovata  eretta  Chiesa  in  Constantinopoli, 
accennata  nell'  Art.  XIV.  non  meno  che 
di  quei  che  la  servono,  e  promette  rice- 
vere  queste  rimostranze  con  attenzione, 
come  fatte  da  persona  considerata  d'una 
vicina  e  sinceramente  mica  Potenza." 

ART.  XIV. 

"  L'altissima  Corte  di  Russia  potra  a 
nurma'  delle  altre  Potenze,  a  riserva  della 
Chiesa  Domestica,  edificarne  una  nelle 
parte  di  Galata  nella  strada  Detta  Bey- 
Uglti,  la  qual  Chiesa  sara  pubblica,  chia- 
mata  Russo-Greca,  e  questa  sempre  si 
inanterra  sotto  la  protezione  del  Ministro 
di  questo  Impero,  e  andera  illesa  da  ogni 
molestia,  ed  oltraggio." 

ART.  VIII. 

"  Si  permittera  liberamente  a'  Sudditi 
dell'  Impero  Russo,  tanto  Ecclesiastici, 
quanto  secolari,  il  visitare  la  S.  Citta  di 
Gerusalemme,  ed  altri  luoghi  degni  di 
esser  visitati,  e  non  si  dimanderk  mai  da 
tali  viandanti,  e  viaggiatori,  ne  in  Geru- 
salemme, ne  in  altri  luoghi,  ne  anche 
nelle  vie  da  chicchesia,  nessun  Caraccio, 
taglia,  o  tribute,  o  qualche  altra  tassa. 
Ma  oltre  a  ci6  saranno  muniti  co,  conve- 
nient! passaporti,  o  Firmani,  i  quali  si 
danno  ai  sudditi  delle  altre  Potenze.  E 
nel  tempo  ch1  essi  saranno  nell'  Impero 
Ottomanno,  non  si  fara  loro  nesssun  torto, 
ne  alcun  oltraggio,  ma  saranno  difesi  con 
tutto  il  rigore  delle  leggi." 


ses  eglises  ;  et  aussi  elle  permet  aur 
Ministres  de  la  cour  Imperiale  de  Russie 
de  faire  dans  toutes  les  occasions  des 
representations,  tant  en  faveur  de  la 
nouvelle  e"glise  a  Constantinople  dont  il 
sera  mention  a  1' Article  XIV.  que  pour 
ceux  qui  la  desservent,  promettant  de  les 
prendre  en  consideration,  comme  faites 
par  une  personne  de  confiance  d'une  Pu- 
issance voisine  et  sincerement  amie."(A) 

ART.  XIV. 

"  A  I'exemple  des  autres  Puissances  on 
permet  a  la  haute  Cour  de  Russie,  outre 
la  Chapelle  batie  dans  la  maison  du 
Ministre,  de  construire  dans  un  quartier 
de  Galata  dans  la  rue  nomme'e  Bey  Oglu, 
une  eglise  publique  du  rit  Grec,  laquelle 
sera  toujours  sous  la  protection  des 
Ministres  de  cet  Empire  et  a  1'abri  de 
toute  gene  et  de  toute  avanie."(t) 

ART.  VIII. 

"  II  sera  libre  et  permis  aux  sujets  de 
1'Empire  de  Russie,  tant  seculiers  qu'ec- 
clesiastiques,  de  visitor  la  sainte  ville  de 
Jerusalem  et  autres  lieux  dignes  d'atten- 
tion.  II  ne  sera  exige*  de  ces  pelerins  et 
voyageurs  par  qui  que  ce  puisse  etre,  ni 
a  Jerusalem,  ni  ailleurs,  ni  sur  la  route, 
aucun  Charatsch,  contribution,  droit  ou 
autre  imposition ;  mais  ils  seront  munis 
de  passeports  et  firmans,  tels  qu'on  en 
donne  aux  sujets  des  autres  Puissances 
amies.  Pendant  leur  sejour  dans  1'Em- 
pire Ottoman,  il  ne  leur  sera  fait  le 
moindre  tort  ni  offense,  mais  au  con- 
traire  ils  seront  sous  la  protection  la  plus 
rigide  des  loix." 


r*48n  *The  Treaty  of  Adrinople,  (1829,)  is  referred  to  by  Russia  as 
J  confirming  the  rights  conceded  by  this  Treaty  of  Kaynardgi. 

That  Treaty  contains  no  new  provision  whatever  on  the  subject  of  re- 
ligion. There  are  special  provisions  relating  to  Moldavia  and  Wallachia, 
both  in  the  body  of  the  Treaty  and  in  an  annexed  Treaty ;  but  the  only 
religious  stipulation  is  for  the  free  enjoyment  and  exercise  of  their  reli- 
gion.^) 

The  substance  of  the  provisions  of  the  Treaties  just  cited  appears  to 
be— 

1.  That  Pilgrims,  Ecclesiastics,  and  Travellers  may  visit,  safely  and 
untaxed,  Jerusalem  and  the  Holy  Places. 

2.  That  certain  new  Chapels  may  be  built  in  a  particular  quarter  of 

Chef  le  Feld-Mare"chal  Comte  de  Roumanzow,  pres  du  village  de  Kutschouc  Kay- 
nardgi sur  la  rive  droite  du  Danube. — Martens,  Rec.  de  Tr.  t.  ii.  (1771-1779) 
pp.  286-7. 

(A)  Ib.  pp.  296-7.  (?)  Martens,  Rec.  de  Tr.  t.  ii.  (1771-1779)  pp.  300,  301. 

(k)  Art.  V. — "Elles  jouiront  du  libre  exercice  de  leur  culte,"  &c. 


INTERVENTION.  345 

Constantinople — a  I'exemple  des  autres  puissances — besides  the  Ambas- 
sadorial Chapel,  then  existing:  there  is  similar  provision  in  the  French 
Treaty  of  1740. 

3.  That  the  Sublime  Porte,  not  the  Emperor  of  Kussia,  shall  continue 
to  protect  the  "  Christian  Religion :" — the  interference  of  the  Emperor 
being,  in  the  same  clause,  implicitly  limited  to  the  making  representa- 
tions in  favour  of  a  particular  church  and  its  clergy,  to  which  the  Porte, 
on  the  ground  of  friendship  alone,  engages  to  listen. 

CCCCVI.  Not  only  the  language  of  the  Treaties  which  have  been 
concluded  on  this  subject  between  Russia  *and  the  Porte,  must  P^^OQ-I 
be  considered — but  also  the  absence  both  of  such  Treaties  them-  «-  -I 
selves,  and  the  absence  of  such  provisions  in  Treaties,  when  the  circum- 
stances might  well  seem  to  call  for  them.  In  other  words,  the  present 
demand  of  Russia  must  be"  negatively,  as  well  as  affirmatively,  examined. 
Let  the  cases  of  Servia  and  of  Greece  be  considered. 

The  Christian  Servians,  who  had  made  common  cause  with  Russia  in 
her  wars  with  the  Porte,  and  had  been  included  in  the  Treaty  of  Bucha- 
rest in  1812,  applied  in  vain,  though  after  suffering  atrocious  cruelties, 
to  the  Congress  of  Vienna,  even  to  mediate  on  their  behalf,  and  yet  in 
that  Congress  Russia  was  pre-eminently  powerful. 

The  Intervention  of  the  great  Christian  Powers,  among  whom  was 
Russia,  for  the  pacification  of  Greece,  (1826,)  was  placed,  as  we  have 
seen,(?)  with  careful  precision  upon  the  necessity  of  putting  an  end  to  a 
contest  which  injured  the  commerce  and  disturbed  the  repose  of  Europe, 
and  upon  the  request  of  the  Greeks  for  the  mediation  of  the  European 
Powers.  In  that  Treaty,  no  allusion  to  the  Russian  Protectorate  of  the 
Greek  Church  is  to  be  found. 

If  these  premises  be  correct  the  conclusion  seems  inevitable;  but  it 
must  be  left  to  the  impartial  jurist  of  every  nation  to  decide  whether  the 
evidence,  both  negative  and  affirmative,  is  favourable  to  or  conclusive 
against  the  demand  of  Russia,  whether  it  have  a  foundation  in  precedent 
or  whether  it  be  altogether  new. 

CCCCVII.  The  general  subject  of  the  Balance  of  Power  should  not 
be  altogether  dismissed  without  the  remark,  that  the  maintenance  of  this 
doctrine  does  not  require  that  all  existing  Powers  should  retain  exactly 
their  present  territorial  possessions,  but  rather  that  no  single  Power 
should  be  allowed  to  increase  them  in  a  manner  which  threatens  the 
liberties  of  other  States. (m)  The  doctrine  properly  understood  does  not 
*imply  a  pedantic  adherence  to  the  particular  system  of  equili-  r*,iQon 
brium  maintained  by  existing  arrangements,  but  to  such  an  •• 
alteration  of  it  as  the  Right  of  Self-defence,  acting  by  way  of  preven- 
tion, would  authorise  other  Powers  in  opposing. (n) 

(V)  Vide  ante,  p.  105.  (m)  Bolingbroke's  Works,  vol.  ii.  p.  439. 

(n)  "  Sunt  perfectd  eruntque  semper  hujus  librae  lances  impares :  verum  est 
politicorum  curare  ne  aliqua  ex  parte  nimidm  invergat  discrimen.  Quod  ubi 
recte  providetur,  etsi  eveniant  rerum  conversiones  salva  manet  doctrina  eqmlibrii, 
nomen  ergo  hoc  sensu  melius  interpretaberis  prout  Ancillon  System  der  Gegen- 
krafte  und  der  Wechselwirkung,  quam  cum  aliis  System  des  Gleichgewichts." — 
Klinkhammer,  ubi  supra,  p.  61. 

Lord  Bacon  says  :  "  Kings  have  to  deal  with  their  neighbours. — First,  for  their 

SEPTEMBER,  1854. — 23 


346  PHILLIMORE    ON    INTERNATIONAL    LAW. 

neighbours  there  can  no  general  rule  be  given  (the  occasions  are  so  variable,) 
save  one  which  ever  holdeth:  which  is,  that  princes  do  keep  due  sentinel,  that 
none  of  their  neighbours  do  overgrow  so  (by  increase  of  territory,  by  embracing 
of  trade,  by  approaches,  or  the  like)  as  they  become  more  able  to  annoy  them 
than  they  were ;  and  this  is  generally  the  work  of  standing  counsels  to  foresee 
and  to  hinder  it.  During  that  triumvirate  of  kings,  King  Henry  VIII.  of  England, 
Francis  I.,  King  of  France,  and  Charles  V.,  Emperor,  there  was  such  a  watch 
kept  that  none  of  the  three  could  win  a  palm  of  ground,  but  the  other  two  would 
straightways  balance  it,  either  by  confederation,  or,  if  need  were,  by  a  war;  and 
would  not  in  any  wise  take  up  peace  at  interest:  and  the  like  was  done  by  that 
league  (which  Guicciardini  saith  was  the  security  of  Italy)  made  between  Ferdi- 
nando,  King  of  Naples,  Florenzius  Medicea,  and  Ludovicus  Sforza,  potentates,  the 
one  of  Florence,  the  other  of  Milan.  Neither  is  the  opinion  of  some  of  the  school- 
men to  be  received,  that  a  war  cannot  justly  be  made  but  upon  a  precedent  injury 
or  provocation;  for  there  is  no  question  but  a  just  fear  of  an  imminent  danger, 
though  there  be  no  blow  given,  is  a  lawful  cause  of  war." — Bacon,  Essay  on 
Empire. 


CONTENTS    OF    APPENDIX. 


The  pages  referred  to  are  those  within  brackets  [  ]• 

APPENDIX   I.    Page  17. 

International  Jurisprudence  of  Ancient  Rome       .  .  '          .  .    489 

APPENDIX  II.    Page  30. 

Sources  of  International  Law. — Extracts  from  Suarez,  Domat,  Merlin, 
Vattel 494 

APPENDIX  III.    Page45. 

Extract  from  the  Speech  of  Lord  Grenville,  upon  the  Motion  for  an  ad- 
dress to  the  Crown,  approving  of  the  Convention  with  Russia,  1801,  as 
to  Effect  of  embodying  a  Principle  of  General  Law  in  a  Treaty  -  496 

APPENDIX    IV.    Page49. 

Catalogue  of  Treaties  relating  to  the  Opening  of  Ports  usually  closed  to 
Foreigners. — Rel&che  Forcee  .  .  .  .*  .  498 

APPENDIX    V.    Page  87. 
Recognition  of  European  International  Law  by  Turkey,  April,  1854         .     500 

APPENDIX    VI.    Page  108. 

Catalogue  of  principle  Treaties  and  Manifestos  between  Christian  Powers, 
Morocco,  Tripoli,  Tunis  .  ..••••  .  .  .  501 

APPENDIX    VII.    Page  263. 
Prescription. — Extract  from  Donellus        .  .  .  .  .    602 


348          PHILLIMORE    ON    INTERNATIONAL    LAW. 


APPENDIX    VIII.    Page  397. 

16  &  17  Viet.  c.  107,  s.  150,  as  to  Prohibition  to  export  or  carry  coast- 
wise Arms  ........     503 

59  Geo.  3,  c.  69,  Foreign  Enlistment  Act  .  .  504 

APPENDIX    IX.     Pages  375,  376. 

Case  as  to  Jurisdiction  of  Masters  of  Foreign  Merchantmen  over  their 
Crew  in  French  Ports. — Articles  in  certain  Treaties  relating  to  such 
Jurisdiction  .  .  .  .  .  .  .  .513 

APPENDIX    X.    Page  430. 

Extradition. — Case  of  Thomas  Kaine,  tried  in  the  United  States  of  North 
America  .  ...  ...  .  .  .  .  516 

APPENDIX    XL    Page435. 

Balance  of  Power. — Extract  from  Fenelon. — Convention  between  Eng- 
land, France,  and  the  Ottoman  Porte,  against  Russia,  1854  .  .  520 


APPENDIX. 

, —      m  

APPENDIX  I.    PAGE  17. 

^INTERNATIONAL  JURISPRUDENCE   OP  ANCIENT  ROME.      [*489] 

I.  GROTIUS  is  literally  inaccurate,  as  Ompteda,  remarks,  in  citing 
Cicero  for  a  direct  assertion  that  the  science  of  International  Jurispru- 
dence was,  in  the  abstract,  an  excellent  thing.  But  unquestionably,  in 
the  passage  upon  which  G-rotius  relies  for  this  assertion,  International 
Jurisprudence  is  recognised  as  a  science,  and  acquaintance  with  it  as  the 
accomplishment  of  a  statesman.  Cicero,(a)  speaking  of  Pompey,  says 
that  he  possessed  "  prsestabilem  scientiamin  foederibus,  pactionibus,  con- 
ditionibus  populorum,  regum,  exterarum  nationum  in  universo  denique 
belli  jure  et  pacis,"  and  it  would  not  be  easy  to  give  a  juster,  better, 
more  complete  recognition,  or  a  fuller  description  of  the  science  of  which 
we  are  treating.  In  Sallust,  the  expression  jus  gentium  is  certainly  to 
be  found  used  in  the  sense  of  International  Law,  and  also  in  some  pas- 
sages of  Livy.  For  instance,  when  Sallust  tells  us  that  Marius,  in  putting 
to  death  the  Numidians  who  had  surrendered  (in  deditionem  acceptos\ 
acted  contra  jus  belli,  he  speaks  of  it  as  a  violation  of  a  recognised  rule 
of  International  Law,  applicable  now,  as  then,  to  a  state  of  war.  And 
Bocchus  is  made  by  the  same  author  to  claim  the  part  of  Numidia  con- 
quered from  Jugurtha  as  "jure  belli  suam  factum."  Again,  Jugurtha 
Adherbal,  who  had  attempted  his  (Jugurtha's)  life  "Populum  Ho- 
maintains  that  the  Senate  had  no  right  to  prevent  him  from  attacking 
manum  neque  recte,  neque  pro  bono  facturum,  si  ab  jure  gentium  sese 
prohibuerit."(Z>)  In  the  most  barbarous  times,  ambassadors  are  said  to 
be  "jure  gentium  sancti."(c)  In  both  these  instances  the  meaning  would 
be  correctly  rendered  by  the  words  Law  of  Nations.  There  is  another 
passage  in  the  "  Bellum  Jugurthinum"  in  which  the  Law  of  Nations, 
with  respect  to  the  privilege  of  the  ambassador's  suite,  is  clearly  distin- 
guished from  the  Law  of  Nature  :  "  Fit  reus  magis  ex  aequo  bonoque, 
quam  ex  jure  gentium  Bomilcar,  comes  ejus  qui  Romam  fide  publica 

(a)  Orat.  pro  Lege  Manil.  (6)  Sail.  Bell.  Jugurth.  225. 

(c)  Liv.  xxiix.  25. 


350  PHILLIMOEE    ON    INTERNATIONAL    LAW. 

venerat."     The  expression  of  Lucan,  as  to  the  violation  of  the  Laws  of 
Embassy  by  the  Egyptians,  is  very  strong : 

"  Sed  neque  jus  mundi  valuit,  neque  fcedera  sancta 
Gentibus."— Lib.  x.  471-472. 

With  respect  to  the  use  of  this  expression  jus  gentium,  in  the  compi- 
lations of  Justinian,  it  appears  generally  to  be  used  to  signify,  some- 
r*4Qfn  **mes  *wna^  is  called  in  modern  times  the  Law  of  Nature,  some- 
J  times  a  positive  Law  universally  instituted  by  all  civilised  nations. 
So,  in  the  Digest,(c7)  acceptilatio,  or  the  release  of  a  debt,  is  said  to  be 
juris  gentium;  and  in  modern  times  English  Judges  have  said  that  ques- 
tions relating  to  marriage  are  juris  gentium. 

Gaius  and  other  Roman  jurists  made  a  twofold  partition  of  Jus:  into 
1.  Jus  Gentium  vel  Naturae;  2.  Jus  Civile.  Ulpian  and  others  made  a 
threefold  partition  :  1.  Jus  Gentium  ;  2.  Jus  Civile  ;  3.  Jus  Naturale — 
meaning  by  this  to  include  the  interests  common  both  to  man  and 
beast.  Savigny  rightly  rejects  this  last  partition,  and  adheres  to  the 
first,  (e) 

There  are,  however,  passages  in  which  jus  gentium  clearly  does  mean 
International  Law.  Thus,  in  the  Digest,  we  read  :  "  Si  quis  legatum 
hostium  pulsasset,  contra  jus  gentium  id  commissum  esse  existimatur, 
quia  sancti  habentur  legati.  Et  ideo,  quum  legati  apud  nos  essent  gentis 
alicujus,  quum  bellum  eis  indictum  sit,  responsum  est,  liberos  eos 
manere ;  id  enim  juri  gentium  conveniens  esse.  Itaque  eum,  qui  lega- 
tum pulsasset,  Quintus  Mucius  dedi  hostibus,  quorum  erant  legati,  soli- 
tus  est  respondere;  quern  hostes  si  non  recepissent,  quaesitum  est,  an 
civis  Romanus  maneret  quibusdam  existimantibus  manere,  aliis  contra, 
quia  quern  semel  populus  jussisset  dedi,  ex  civitate  expulisse  videretur, 
sicut  faceret,  quum  aqua  et  igne  interdiceret.  In  qua  sententia  videtur 
Publius  Mucius  fuisse.  Id  autem  maxime  quaesitum  est  in  Hostilio 
Mancino,  quern  Numantini  sibi  deditum  non  acceperunt,  de  quo  tamen 
lex  postea  lata  est,  ut  esset  civis  Romanus,  et  Praeturam  quoque  gessisse 
dicitur."(/) 

In  the  Institutes  it  is  said:  "  Sed  naturalia  quidem  jura,  quaa  apud 
omnes  gentes  perseque  servantur,  divina  quadam  providentia  constituta, 
semper  firma  atque  immutabilia  permanent;  ea  vero  quae  ipsa  sibi  quae- 
que  civitas  semper  constituit,  saepe  mutari  solent,  vel  tacito  consensu 
populi,  vel  alia  lege  poster  lata."fa) 

Here  jus  gentium  and  jus  naturale,  as  the  Law  of  Nature,  are  clearly 
synonymous.  But  in  Gaius  we  find  this  remarkable  passage :  after 
having  said  that  only  Roman  citizens  were  competent  to  enter  into  a 
contract  in  the  form  spondes  ?  spondeo,  he  continues,  "  Unde  dicitur, 
uno  casu  hoc  verbo  peregrinum  quoque  obligari  posse,  velut  si  Imperator 
noster  Principem  alicujus  peregrin!  populi  de  pace  ita  interroget,  Pacem 
futuram  spondes  ?  vel  ipse  eodem  modo  interrogetur.  Quod  nimium 

(d)  Lib.  xlvi.  t.  iv. 

(e)  System  des  R.  R.,  i.  (Beylage  I.)     See,  too,  Cic.  de  Off.  1.  3—5. 
/)  Dig.  lib.  1.  t.  vii.  s.  17. 

g)  Inst.  de  Jur.  Nat.  Gent,  et  Civ.  1.  i.  t.  ii.  s.  11. 


APPENDIX     I.  351 

subtiliter  dictum  est;  quia  si  quid  adversus  pactionem  fiat,  non  ex  stipu- 
latu  agitur,  sed  jure  belli  res  vindicatur."  (h) 

*The  reader  who  is  anxious  to  prosecute  his  inquiries  further  nMni-i 
into  this  not  uninteresting  subject,  would  do  well  to  consult  the  L 
following,  among  other  treatises : 

1.  Warnkoenig,  "  Vorschule  der  Institutionem  und  Pandekten,"  83. 

2.  Savigny,  "System  des  Rb'mischen  Recht,"  i.  112;  and  Beylage  I. 
to  that  volume. 

II. — 1.  Observations  upon  the  "  Collegium  Fecialium"  and  the  Jus 
Feciale."  2.  The  institution  of  the  "  Recuperatores,"  and  the  doctrine 
of  the  "  Recuperatio." 

1.  Varro  gives  the  following  definition  of  the  term  :  "  Feciales,  quod 
fidei  publicse  inter  populos  praeerant;  nam  per  hos  fiebat  ut  justum  con- 
ciperetur  bellum,  et  inde  clesitum.  ut  federe  fides  pacis  constitueretur. 
Ex  his  mittebantur  antequam  conciperetur,  qui  res  repeterent,  et  per  hos 
etiam  nunc  fit  foedus,  quodyi^ws  Ennius  scribit  dictum."  (t) 

The  Roman  institution  of  the  Feciales  was  probably  derived  originally 
from  the  Egyptians,  but  directly  from  the  Greeks  through  the  medium 
of  their  colonies  settled  in  Italy;  but  it  is  a  memorable  characteristic  of 
the  Romans,  that  the  founding  of  an  institution  having  for  its  object  the 
establishment  and  maintainance  of  fixed  relations  both  in  war  and  peace 
with  neighbouring  states,  should  have  been  almost  coeval  with  the  origin 
of  their  empire.  The  Feciales,  occupying  a  middle  station  between 
priests  and  ministers  of  state,  regulated,  with  as  much  precision  as  the 
heralds  of  the  middle  ages,  and  according  to  a  certain  ritual,  the  forms 
and  usages  relating  to  the  treatment  of  ambassadors,  the  concluding  of 
treaties,  the  promulgation  and  conduct  of  war.(&)  In  these,  as  in  all 
important  concerns,  the  sanctions  of  religion  were  invoked  to  strengthen 
the  obligations  of  morality.  Cicero  says :  "Belli  quidem  sequitas  sanc- 
tissime  feciali  populi  jure  praescripta  est  :"(l\  and  the  facts  recorded  in 
history  appear  to  warrant  this  description.  If  a  dispute  arose  between 
Rome  and  another  independent  State,  Feciales  were  sent  to  demand  repa- 
paration.  If  the  attempt  failed,  war  was  declared  according  to  minute 
and  particular  formalities. 

It  is  not  within  the  scope  of  this  work  to  show  how  the  decay  and  de- 
cline of  this  remarkable  institution  accompanied  the  corruption  and  over- 
throw of  the  republic. (m) 

2.  We  know  from  other  sources,  besides  the  certain  testimony  of  ety- 
mology, that  in  the  very  earliest  ages  both  of  Greece  and  Rome,  the 
stranger   and   the  enemy  were   synonymous  terms    (t%6pbs}   hostisMn) 
*To  the  necessity  which  dawning  civilisation  soon  produced,  of  p^no-i 
maintaining  a  friendly  intercourse  with  the  inhabitants  of  neigh-  L 

(h)  The  passage  is  cited  by  Savigny,  System  des  ROmischen  Recht,  vol.  iii.  (note 
c),  p.  310. 

(i)  Varro,  De  Lingua  Latina,  1.  v.  s.  86,  p.  34  (Leipsic,  1833). 

(k)  Sell,  pp.  23-74. 

Grotius,  De  J.  B.  et  P.  1.  ii.  c.  i.  s.  22,  p.  168. 

(I)  Cic.  De  Off.  1.  i. 

(m)  Ompteda,  Volkerrechts,  s.  34,  p.  146. 

(n)  Sell,  pp.  2-3,  and  notea. 


352  PHILLIMORE     ON     INTERNATIONAL     LAW. 

bouring  states,  as  well  as  to  some  peculiarities  in  the  condition  of  the 
founders  of  Rome,  we  owe  the  institution  of  the  Recuperatores,  and  the 
doctrine  of  the  Recuperatio. (o\ 

For  in  order  to  satisfy  this  necessity,  treaties  were  entered  upon,  in 
which  the  administration  of  justice  to  the  individual  subjects  of  the  con- 
tracting parties  within  the  dominions  of  either  was  mutually  guaranteed. 
Therefore  Grotius  correctly  observes:  "Tenetur  (i.  e.  rex  aut  populus) 
etiam  dare  operam  ut  damna  resarciantur :  quod  officium  Romae  erat 
recuperatorum.  Gallus  .^Elius  apud  Festum,  Reciperatio  cum  inter  est 
populum  et  reges,  nationesque  ac  civitates  peregrinas,  lex  .convcnit,  quo- 
modo  per  reciperatorem  reddantur  res  reciperenturque,  resque  privatus 
inter  se  prosequantur." 

Sell,  to  whose  very  learned  work  I  have  already  referred,  cites  the 
passage  from  Festus,  but  makes  no  mention  of  Grotius — at  least,  I  can 
find  none. 

The  Recuperatores(jp)  were  judges  chosen  for  the  purpose  of  deciding 
questions  at  issue  between  the  native  and  the  alien  ally.  Such  a  treaty, 
indeed,  implied  that  the  parties  to  it  were  free  and  independent  States. 
For  as  soon  as  the  one  became  actually  subject  to  the  other,  the  existence 
of  such  a  treaty  was  useless,  as  the  conquered  might,  and  generally  was 
compelled  to,  adopt  the  laws  of  the  conqueror.  Equally  useless  would 
such  a  treaty  be  in  the  case  of  two  nations  subsisting  in  so  intimate  an 
union  as  to  be,  as  it  were,  citizens  of  one  state.  And  if  we  bear  in  mind 
that  in  either  of  these  contingencies  a  Recuperatio  could  have  no  place, 
and  remember  how  rapidly  the  march  of  the  Roman  empire  reduced 
foreign  countries  within  one  or  other  of  them,  we  shall  not  be  surprised 
that  the  traces  of  the  proper  and  primary  application  of  this  peculiar 
branch  of  jurisprudence  became  fainter  as  we  advance  in  the  history  of 
Rome,  and  at  last  disappear  altogether  from  her  records. (5) 

But  when  the  Recuperatio  was  no  longer  strictly  applicable,  accord- 
ing to  the  letter  of  its  original  institution,  because  the  subject,  namely, 
two  independent  States,  was  wanting,  the  principle  of  this  jurisprudence 
was  transferred  by  the  practical  wisdom  of  Rome,  to  the  arbitration  of 
disputes  arising  between  Romans  and  the  inhabitants  of  their  colonies, 
and  also  of  the  provinces  which  it  pleased  them  to  leave  with  the  appear- 
ances of  independent  States.  Livy  records  a  very  striking  instance  of 
its  application,  at  the  request  of  the  legate  from  Spain  to  the  Senate  of 
Rome. 

r*4.Q3T  "  Hispaniae  deinde  utriusque  legati,  aliquot  populorum  in  sena- 
•J  turn  introducti.  li,  de  magistratuum  Romanorum  avaritia  super- 
biaque  conquesti,  nisi  genibus  ab  senatu  petierunt,  ne  se  socios  foedius 
spoliari  vexarique,  quam  hostes,  patiantur.  Quum  et  alia  indigna  quere- 
rentur,  manifestum  autem  esset,  pecunias  captas,  L.  Canuleio  praotori, 
qui  Hispaniam  sortitus  erat,  negotium  datum  est,  ut  in  singulos  a  quibus 
Hispani  pecunias  peterent,  quinos  recuperatores  ex  ordine  senatorio  daret, 

(o)  Sell,  339. 

(p)  ''  0  Rem  prseclaram  vobisque  ab  hoc  retinendam  Recuperatores,"  &c. — Cic. 
Orat.  pro  Caecina,  ss.  22.  24-25. 
(q)  Sell,  339-40. 


APPENDIX     II.  353 

patronosque  quos  vellent,  sumendi  potestatem  faceret.  Vocatis  in  curiam 
legatis  rccitatum  est  senatus  consultum,  jussique  nominare  patronos; 
quatuor  nominaverunt,  M.  Porcium  Catonem,  P.  Cornelium,  Cn.  T. 
Scipionem,  L.  .ZEmilium,  L.  F.  Paullum,  C.  Sulpicium  Gallum,  Cum. 
M.  Titinio  primum  qui  praetor,  A.  Manlio,  M.  Junio  consulibus,  in 
citeriore  Hispania  fuerat,  recuperatores,  sumserunt.  Bis  ampliatus, 

tertio  absolutus  est  reus Ad  recuperatores  adducti  a 

citerioribus  populis  P.  Furius  Philus,  ab  ulterioribus  M.  Matienus. 
Ille,  Sp.  Postumio,  Q.  Mucio  consulibus  triennio  ante,  hicbiennio  prius, 
L.  Postumio,  M.  Popilio  consulibus,  praetor  fuerat.  Gravissimis  crimi- 
nibus  accusati  ambo  ampliatique :  quum  dicenda  de  integro  caussa  esset, 
excusati  exilii  causa  vertisse."(r) 

While  the  Recuperatio  existed  in  its  primitive  state,  it  presented  a 
perfect  picture  of  international  arbitration  upon  the  claims  of  individuals 
the  subjects  of  different  States,  that  is,  upon  questions  of  Private  Inter- 
national Law.  The  better  opinion  seems  to  be,  that  it  took  no  cognizance 
directly  of  questions  of  Public  International  Law,  which  belonged  to  tfe 
province  of  the  Feciales. 

The  reader  is  referred  to  the  following  works  for  fuller  information  on 
this  subject: 

1.  Alexandri  ab  Alexandro  Geniales  Dies,  vol.  ii.  1.  v.  c.  3,  "Quonam 
modo  per  Feciales  inirentur  fosdera,  aut  bella  indicerentur,  et  quib  ab 
exteris  servatum  est,"  ed.  Lugd.  Bat.  1673. 

2.  Sell,  Die  Recuperatio  der  Romer,  ed  Braunschweig,  1837. (s) 


APPENDIX  H.     PAGE  30. 

SOURCES    OF   INTERNATIONAL   LAW. 

(Extract  from   Suarez,  De  Legibus  ei  Deo  Legislatore,  lib.  ii.  c.  xxix. 

n.  9.) 

HAVING  distinguished  jus  gentium  from  jus  naturae,  he  proceeds  to 
say  of  the  former :  " Ratio  hujus  juris  est,  quia  humanum  *genus, 
quamvis  in  varios  populos  et  regna  divisum,  semper  habeat  ali- 
quam  unitatem,  non  solum  specificam,  sed  etiam  quasi  politicam  et 
moralem,  quam  indicat  naturale  praeceptiim  mutui  amoris  et  misericordiae, 
quod  ad  omnes  extenditur,  etiam  extraneos  et  cujuscunque  nationis. 
Quapropter  licet  unaquaaque  civitas  perfecta,  respublica  aut  regnum  sit 
in  se  communitas  perfecta,  et  suis  membris  constans;  nihilo  minus 
quaelibet  illarum  est  etiam  membrum  aliquo  modo  hujus  universi,  prout 

(r)  Liv.  xlii.  2.     Sell,  365-6. 

(s)  "  Das  die  in  Privatsachen  richtenden  Recuperatores  jemals  in  irgend  einer 
rein  offentlichen  Sache  entschieden  batten,  gleichwiel  ob  die  betreffenden  Staaten 
unabhangig,  einem  Bunde  angehOrig,  oder  einem  dritten  untergeben  waren,  lasst 
sic  durch  keine  Zeugnisse  der  alten  belegen  ;  wohl  aber  sind  dergleichen  aufzu- 
finden,  au3  deren  das  Gegentheil  hervorgeht." — Sell.  57.  See,  too,  84 


354  PHILLIMORE    ON    INTERNATIONAL    LAW. 

genus  humanum  spectat.  Nunquam  enim  illse  communitates  adeo  sunt 
sibi  sufficientes  sigillatim,  quin  indigeant  aliquo  -mutuo  juvamine  et 
societate  ac  communicatione,  interdum  ad  melius  esse  majoremque  utili- 
tatem,  interdum  verb  et  ob  moralem  necessitatem.  Hac  ergo  ratione 
indigent  aliquo  jure,  quo  dirigantur  et  recte  ordinentur  in  hoc  genere 
communicationis  et  societatis.  Et  quamvis  magna  ex  parte  hoc  fiat  per 
rationem  naturalem,  non  tamen  sufficienter  et  immediate  quoad  oninia; 
ideoque  specialia  jura  potuerunt  usu  earundem  gentium  introduci." 

(Extract  from  the  Traite,  des  Loix,  by  Domat,  chap.  xi.  s.  39.) 

"CoMME  tout  le  genre  humain  compose  une  societe  universelle,  divisee 
en  diverses  nations,  qui  ont  leurs  gouvernemens  separez,  et  que  les 
nations  ont  entr'elles  de  differentes  communications,  il  a  ete"  necessaire 
qu'il  y  cut  des  loix  qui  reglassent  1'ordre  de  ces  communications,  et  pour 
les  princes  entr'eux  et  pour  leurs  sujets,  ce  qui  renferme  1' usage  des 
ambassades,  des  negociations,  des  Traites  de  Paix,  et  toutes  les  manures 
dont  les  princes  et  leurs  sujets  entretiennent  les  commerces,  et  les  autres 
liaisons  arec  leurs  voisins.  Et  dans  les  guerres  meme  il  y  a  des  loix 
qui  reglent  les  manieres  de  declarer  la  guerre,  qui  moderent  les  actes 
d'hostilite,  qui  maintiennent  1'usage  des  mediations,  des  treves,  des  sus- 
pensions d'armes,  des  compositions,  de  la  surete  des  otages,  et  d' autres 
semblables. 

"Toutes  ces  choses  n'ont  pu  etre  reglees  que  par  quelques  loix :  et 
comme  les  nations  n'ont  aucune  autorite"  pour  s'en  imposer  les  unes  aux 
autres,  il  y  a  deux  sortes  de  loix,  qui  leur  servent  de  regies.  L'une  des 
loix  naturelles  de  I'humanite",  de  rhospitalite",  de  la  fidelite,  et  toutes 
celles  qui  dependent  de  ces  premieres,  et  qui  reglent  les  manieres  dont 
les  peuples  de  differentes  nations  doivent  user  entr'eux  en  paix,  et  en 
guerre.  Et  1'autre  est  celle  des  reglemens  dont  les  nations  conviennent 
par  des  Traites,  ou  par  des  usages,  qu'elles  etablissent  et  qu'elles  ob- 
r*lQTl  serven*1  re'ciproquement.  *Et  les  infractions  de  ces  loix,  de  ces 
-I  trace's,  et  de  ces  usages  sont  reprimees  par  des  guerres  ouvertes, 
et  par  des  represailles,  et  par  d' autres  voyes  proportionnees  aux  ruptures, 
et  aux  entreprises. 

"Ce  sont  ces  loix  communes  entre  les  nations  qu'on  peut  appeller  et 
que  nous  appellons  communement  le  droit  des  gens;  quoique  ce  mot  soit 
pris  en  un  autre  sens  dans  le  droit  Remain,  ou  Ton  comprend  sous  le 
droit  des  gens  les  contrats  meme;  comme  les  ventes,  les  louages,  la 
societe,  le  de'pot,  et  autres,  par  cette  raison  qu'ils  sont  en  usage  dans 
toutes  les  nations." 

(Extract  from  Merlin,  Repertoire  de  Jurisprudence)  vol.  v.  p.  291.) 

"  Le  droit  primitif  des  gens  est  aussi  ancien  que  les  hommes,  et  il  est  par 
essence  aussi  invariable  que  le  droit  naturel;  les  devoirs  des  enfans  envers 
leurs  peres  et  leurs  meres,  1'attachement  des  citoyens  pour  leur  patrie, 
la  bonne  foi  dans  les  conventions,  n'ont  jamais  du  souffrir  aucun  change- 


APPENDIX     II.  855 

ment;  et  ces  devoirs,  s'ils  n'ont  pas  e"te  toujours  remplis,  ont  toujoursdu 
1'etre. 

"Quant  audroit  des  gens  secondaire,  il  s'est  forme,  comme  on  1'a  dej& 
dit,  par  succession  de  temps.  Ainsi,  les  devoirs  reciproques  des  citoyens 
ont  commence  lorsque  les  hommes  out  bati  des  villes  pour  vivre  en 
societe;  les  devoirs  des  sujets  envers  1'etat  ont  commence  lorsque  les 
hommes  de  chaque  pays  qui  ne  composaient  entre  eux  qu'une  meme 
famille  soumise  au  seul  governement  paternel,  ont  etabli  au-dessus  d'eux 
une  puissance  publique  qu'ils  ont  deferde  a  un  ou  5,  plusieurs  d'entre 
eux. 

"L'ambition,  I'interet,  et  les  autres  sujets  de  discorde  entre  les  puis- 
sances voisines,  ont  donne  lieu  aux  guerres  et  aux  servitudes  person- 
nelles;  telles  sont  les  sources  funestes  d'une  partie  de  ce  second  droit 
des  gens. 

"Les  differentes  nations,  quoique  la  plupart  divise"es  d'interets,  sont 
convenues  entre  elles  tacitement  d'observer,  tant  en  paix  qu'en  guerre, 
certaines  regies  de  bienseance,  d'humanite  et  de  justice,  comme  de  ne 
point  attenter  5,  la  personne  des  ambassadeurs  ou  autres  personnes  en- 
voy ees  pour  faire  des  propositions  de  paix  ou  de  treve;  de  ne  point 
empoisonner  les  fontaines;  de  respecter  les  temples;  d'epargner  les 
femmes,  les  vieillards,  et  les  enfans;  ces  usages  et  plusieurs  autres 
semblables,  qui  par  succession  des  temps  ont  acquis  force  de  loi,  ont 
forme  ce  qu'on  appelle  le  droit  des  gens  ou  le  droit  commun  aux  divers 
peuples." 

(Extract  from  Vattel,  Prelim,  s.  6.) 

"H  faut  done  appliquer  aux  nations  les  regies  du  droit  naturel,  pour 
decouvrir  quelles  sont  leurs  obligations,  et  quels  sont  leurs  droits;  par 
consequent  le  droit  des  gens  n'est  originairement  autre  chose  que  le  droit 
de  la  nature  applique  aux  nations.  Mais  comme  1'application  d'une 
regie  ne  peut  etre  juste  et  raisonnable,  si  elle  *ne  se  fait  d'une 
maniere  convenable  au  sujet,  il  ne  faut  pas  croire  que  le  droit 
des  gens  soit  precisement  et  partout  le  meme  que  le  droit  naturel,  aux 
sujets  pres,  en  sorte  que  1'on  n'ait  qu'a  substituer  les  nations  aux  par- 
ticuliers.  Une  societe  civile,  un  etat,  est  un  sujet  bien  different  d'un 
individu  humain;  d'ou  resultent,  en  vertu  des  lois  naturelles  meme,  des 
obligations  et  des  droits  bien  differents  en  beaucoup  de  cas;  la  meme 
regie  generale,  appliqu6e  &  deux  sujets,  ne  pouvant  operer  des  decisions 
semblables,  quand  les  sujets  different;  ou  une  regie  particuliere,  tres 
juste  pour  un  sujet,  n'etant  point  applicable  a  un  second  sujet  de  toute 
autre  nature.  II  est  done  bien  des  cas,  dans  lesquels  la  loi  naturelle  ne 
decide  point  d'etat  k  etat,  comme  elle  deciderait  de  particulier  k  particu- 
lier.  II  faut  savoir  en  faire  une  application  accommodee  aux  sujets;  et 
c'est  1'art  de  1'appliquer  ainsi,  avec  une  justesse  fondee  sur  la  droite 
raison,  qui  fait  du  droit  des  gens  une  science  particuliere." 


350  PDILLTMORE     ON    INTERNATIONAL    LAW. 


APPENDIX  III.    PAGE  45. 

(Extract  from  the  Speech  of  Lord  Grenville  upon  the  Motion  for  an 
Address  to  the  Crown,  approving  of  the  Convention  with  Russia  in 
1801,  as  to  the  Effect  of  embodying  a  Principle  of  General  Law  in  a 
Treaty.} 

"BUT,  among  the  numerous  instances  in  which  such  a  revisal  of  the 
present  Treaty  appears  to  be  essential  to  the  public  interests,  there  is 
none  of  such  extensive  importance  as  that  to  which  I  must  next  intreat 
the  particular  attention  of  the  House. 

"  On  comparing  together  the  different  sections  of  the  third  article  of 
this  convention,  one  great  distinction  between  them  cannot  fail  to  be  re- 
marked, even  by  the  most  superficial  observer.  The  two  first  sections 
and  the  fifth,  those  which  relate  to  the  coasting  and  colonial  trade,  and 
to  the  proceedings  of  our  maritime  tribunals,  are  in  their  frame  and  ope- 
ration manifestly  prospective.  They  provide  only  for  the  future  arrange- 
ment of  the  objects  which  they  embrace;  and  they  profess  to  extend  no 
further  than  to  the  reciprocal  conduct  of  Great  Britain  and  Russia 
towards  each  other. 

"  The  third  and  fourth  sections,  on  the  contrary,  those  which  treat  of 
contraband  of  war  and  of  blockaded  ports,  do  each  of  them  expressly  con- 
tain, not  the  concession  of  any  special  privilege  henceforth  to  be  enjoyed 
by  the  contracting  parties  only,  but  the  recognition  of  a  universal  and 
pre-existing  right,  which,  as  such,  cannot  justly  be  refused  to  any  other 
independent  State. 

"This  third  section,  which  relates  to  contraband  of  war,  is  in  all  its 

r»4.Q71  Par*s  strictly  declaratory.      It  is  introduced  by  a  separate  pre- 

J  amble,  *announcing  that  its  object  is  to  prevent  <  all  ambiguity 

or  misunderstanding  as  to  what  ought  to  be  considered  as  contraband  of 

war.' 

"  Conformably  with  this  intention,  the  contracting  parties  declare  in 
the  body  of  the  clause,  what  are  the  only  commodities  which  they  « ac- 
knowledge as  such.'  And  this  declaration  is  followed  by  a  special  reserve, 
that  it  '  shall  not  prejudice  their  particular  '  Treaties  with  other  powers/ 

"  If  the  parties  had  intended  to  treat  of  this  question  only  as  it  related 
to  their  own  conduct  towards  each  other,  and  to  leave  it  in  that  respect 
on  the  same  footing  on  which  it  stood  before  the  formation  of  the  hostile 
league  of  1800,  all  mention  of  contraband  in  this  part  of  the  present  con- 
vention would  evidently  have  been  superfluous,  nothing  more  could  in 
that  case  be  necessary  than  simply  to  renew  the  former  treaties,  which 
had  specified  what  articles  of  commerce  the  subjects  of  the  respective 
powers  might  carry  to  the  enemies  of  each  other;  and  as  we  find  that 
renewal  expressly  stipulated  in  another  article  of  this  same  convention, 
we  must,  in  common  justice  to  its  authors,  consider  this  third  section  as 
introduced  for  some  distinct  and  separate  purpose.  It  must,  therefore, 
unquestionably  be  understood  in  that  larger  sense  which  is  announced  in 


APPENDIX    III.  357 

its  preamble,  and  which  is  expressed  in  the  words  of  the  declaration 
which  it  contains.  It  must  be  taken  as  laying  down  a  general  rule  for 
all  our  future  discussions  with  any  power  whatever,  on  the  subject  of 
military  or  naval  stores,  and  as  establishing  a  principle  of  law  which  is 
to  decide  universally  on  the  just  interpretation  of  this  technical  term  of 
contraband  of  war. 

"Nor  indeed,  does  it  less  plainly  appear  from  the  conclusion,  than  it 
does  from  the  preamble,  and  from  the  body  of  this  section,  that  it  is 
meant  to  bear  the  general  and  comprehensive  sense  which  I  have  here 
stated.  The  reservation  which  is  there  made  of  our  special  treaties  with 
other  powers,  is  manifestly  inconsistent  with  any  other  more  limited  con- 
struction. 

"  For  if  the  article  had  really  no  other  object  in  its  view,  than  to 
renew  or  to  prolong  our  former  engagements  with  the  Northern  Crowns, 
what  imaginable  purpose  can  be  answered  by  this  concluding  sentence  ? 
Was  it  necessary  to  declare  that  a  stipulation  extending  only  to  Russia, 
to  Denmark  and  to  Sweden,  should  not  prejudice  our  treaties  with  other 
powers  ?  How  should  it  possibly  have  any  such  effect  ?  How  can  our 
treaties  with  Portugal  or  with  America  be  affected  by  the  renewal  of 
those  engagements  which  had  long  ago  declared  what  articles  might  be 
carried  in  Russian  or  Danish  ships  ?  But  the  case  would  indeed  be 
widely  different  under  the  more  enlarged  construction  which  evidently 
belongs  to  this  stipulation.  The  reserve  was  not  only  prudent,  but 
necessary,  when  we  undertook  to  lay  down  a  universal  principle,  apply- 
ing alike  to  our  transactions  with  every  independent  State.  In  recog- 
nising a  claim  of  *pre-existing  right,  and  in  establishing  a  new 
interpretation  of  the  law  of  nations,  it  was  unquestionably  of 
extreme  importance  expressly  to  reserve  the  more  favourable  practice 
which  our  subsisting  treaties  had  established  with  some  other  powers. 

"  And  that  which  was  before  incongruous  and  useless  would  therefore, 
under  such  circumstances,  become,  as  far  as  it  extends,  an  act  of  wise  and 
commendable  forethought. 

"  On  the  whole,  therefore,  I  have  no  doubt  that  neutral  nations  will 
be  well  warranted  in  construing  this  section  as  declaratory  of  a  universal 
principle,  and  applicable  to  every  case  where  contraband  of  war  is  not 
defined  by  special  treaty.  Nor  could  we,  in  my  opinion,  as  this  treaty 
now  stands,  contend  in  future  wars  with  any  shadow  of  reason,  much 
less  with  any  hope  of  success,  against  this  interpretation,  however  de- 
structive it  must  be  of  all  our  dearest  interests.  Least  of  all  can  we 
resist  it,  when  we  are  reminded,  that  in  a  succeeding  article  of  this  very 
convention  we  have  bound  ourselves  by  the  most  distinct  engagement,  to 
regard  all  its  principles  and  stipulations  as  permanent,  and  to  observe 
them  as  our  constant  rule  in  matters  of  commerce  and  navigation ;  ex- 
pressions exactly  corresponding  with  those  by  which  the  parties  to  the 
two  neutral  leagues  asserted  both  the  permanence  and  the  universality  of 
the  principles  which  were  first  asserted  by  those  confederacies,  and  which 
the  present  convention  so  frequently  recognises  and  adopts. 

"  It  is,  therefore,  highly  necessary  that  your  lordships  should  care- 
fully examine  what  is  this  general  interpretation  which  the  contracting 


358  PHILLIMORE    ON    INTERNATIONAL    LAW. 

parties  have  thus  solemnly  declared ;  what  sense  it  is  that  they  have 
thus  permanently  affixed  to  a  term  so  frequently  recurring  in  the  prac- 
tice and  law  of  every  civilised  nation,  and  so  intimately  connected  with 
the  exercise  of  our  naval  rights  as  that  of  contraband  of  war." 


APPENDIX  IV.    PAGE  49. 

CATALOGUE  OP  TREATIES  RELATING  TO  THE  OPENING  OF  PORTS  USUALLY 
CLOSED  TO  FOREIGNERS. 

(See  Reldche  Forcte,  Index  Explicatif,  De  Martens  et  De  Cussy, 
Recueil  de  Traites,  &c.,  t.  i.  p.  42.) 

AUSTRIA  and  Spain,  1725. 
"        and  France,  1841. 
"        and  Russia,  1785. 

*Columbia  and  the  North  American  United  States,  1724. 
yy-l  Denmark  the  Two  Sicilies,  1748. 
"        and  Spain,  1741. 
«         and  France,  1663  and  1742. 
"         and  Great  Britain,  1669. 
«        and  Holland,  1701. 
«         and  the  Ottoman  Porte,  1756. 
«        and  Prussia,  1818. 
«        and  Russia,  1780,  1782. 
«        and  Sweden,  1645. 
"         and  Tunis,  1751. 
Two  Sicilies  and  Holland,  1753. 
"  and  Russia,  1787. 

"  and  Sweden,  1742. 

Spain  and  Great  Britain,  1665,  1667,  and  1670. 
«     and  Holland,  1648, 1650,  1714. 
«     and  Morocco,  1789  and  1799. 
«     and  the  Ottoman  Porte,  1782  and  1827. 
"     and  Portugal,  1715. 
«     and  Tripoli,  1784. 
«     and  Tunis,  1791. 
"     and  Hanseatic  Towns,  1648. 
United  States  of  North  America  and  Central  America,  1825. 

"  «  and  Great  Britain,  1794  and  1806. 

«  «  and  Holland,  1782. 

«  «  and  Morocco,  1788. 

«  «  and  Prussia,  1785,  1799,  and  1828. 

«  «  and  Sweden,  1783  and  1816. 

«  «  and  Tripoli,  1796  and  1805. 

«  «  and  Tunis,  1797. 


APPENDIX     V.  859 

France  and  Spain,  1768  and  1786. 

«      and  The  United  States,  1606  and  1800. 

«      and  Great  Britain,  1606,  1686,  1713,  1786,  and  1826. 

«      and  Morocco,  1767,  1824,  and  1825. 

«      and  Holland,  1662,  1678,  1697,  1713,1789,  1829,  and  1840. 

«      and  the  Ottoman  Porte,  1535, 1569, 1581, 1604, 1673,  and  1740. 

«      and  Portugal,  1835. 

"      and  Russia,  1787. 

«      and  Sardinia,  1838  and  1843. 

«      and  Sweden,  1829. 
Great  Britain  and  Russia,  1843. 
Morocco  and  Holland,  1663  and  1752. 
Holland  and  Sweden,  1679. 

"      and  Tunis,  16(32  and  1713. 


*APPENDIX  V.    PAGE  87.  [*500] 

RECOGNITION  OF  EUROPEAN  INTERNATIONAL  LAW  BY  TURKEY. 

(Extract  from  «  The  Morning  Chronicle"  April 2Q(h}  1854.) 

THE  Journal  de  Constantinople,  of  the  5th,  publishes  two  interesting 
documents.  The  first  is  a  reply  from  Reschid  Pacha,  dated  the  1st,  to  a 
note  of  M.  Metaxa,  the  Greek  Ambassador.  It  is  as  follows : 

"  I  have  read  the  note  of  the  26th  ult,  in  which  you  communicated  to 
me  your  intention  to  quit  this  city.  As  the  Government  of  the  Sub- 
lime Porte  has  not  obtained  from  that  of  Greece  a  sufficient  satisfaction 
for  its  just  claims,  and  as  the  charge  d'affaires  of  the  Porte  must  have 
quitted  Athens  according  to  his  instructions,  it  is  natural  that  you  should 
quit  this  capital.  I  send  your  passports,  therefore,  as  you  request.  As 
from  this  day  the  diplomatic  and  commercial  relations  between  the  tw<S 
Governments  have  ceased,  it  has  been  decided  that  the  persons  connected 
with  the  Greek  Embassy  residing  here,  and  also  the  Greek  Consuls  in 
the  different  provinces  of  the  empire,  shall  immediately  return  to  their 
own  country.  The  merchants  and  other  subjects  of  the  Greek  Govern- 
ment established  in  Turkey  are  also  to  leave  Constantinople ;  but  in 
order  that  their  interests  may  not  suffer,  a  delay  of  fifteen  days  from  the 
present  day  is  accorded  to  them.  As  to  those  who  reside  in  the  provinces 
of  the  empire,  the  delay  of  fifteen  days  will  reckon  from  the  day  on  which 
they  receive  notice  to  leave.  It  results  from  positive  proofs  that  it  is 
not  in  consequence  of  negligence,  but  through  the  toleration  of  the  Greek 
Government,  that  the  Turkish  provinces  bordering  on  Greece  have  been 
invaded.  Although  the  Imperial  Government  has  incontestably  the 
right  to  stop  and  confiscate  all  the  Greek  vessels  in  its  ports,  as  a  guar- 
antee for  the  repayment  of  the  expense  to  which  it  has  been  put,  his 
Imperial  Majesty  the  Sultan,  my  august  sovereign,  does  not  think  it  will 
be  consistent  with  his  feelings  of  justice  and  moderation  to  make  the 


360  PHILLIMORE     ON     INTERNATIONAL     LAW. 

owners  of  these  vessels  suffer  for  a  question  which  regards  the  Greek 
Government.  When  the  latter  shall  have  returned  to  more  just  senti- 
ments, and  have  taken  into  consideration  international  rights  and  the 
law  of  nations,  the  claims  for  these  expenses  will  be  examined.  All 
Greek  vessels  therefore  may,  without  hindrance,  leave  for  Greece,  within 
the  delay  specified.  Orders  have  been  given  to  all  functionaries  to  facili- 
r*~nn  'a'e  ^e  Departure  of  those  *Greek  subjects  who  are  poor  and  des- 
-I  titute,  and  as  much  as  possible  to  exercise  indulgence  towards 
those  who  are  sick  and  infirm.  I  think  it  my  duty  to  repeat  once  more, 
that  it  is  the  Greek  Government  alone  which  has  given  rise  to  this  deci- 
sion, and  that  the  entire  responsibility  of  it  must  fall  upon  Greece.  In 
making  this  communication  by  order  of  His  Majesty  the  Sultan,  I  take 
the  opportunity  of  renewing  to  you  the  assurance  of  my  distinguished 
consideration. 

"  RESCHID." 


APPENDIX  VI.    PAGE  108. 

CATALOGUE  OP  PRINCIPAL  TREATIES  AND  MANIFESTOS  BETWEEN  CHRIS- 
TIAN POWERS  AND  MOROCCO,  TRIPOLI,  TUNIS  (Regences  Barbaresques). 

SINCE  1830,  Algiers  has  become  a  French  colony,  and  Consuls  of  foreign 
nations  are  resident  there.  The  principal  Treaties  before  this  epoch  range 
themselves  between  1760  and  1830. 

Morocco. 

Great  Britain  and  Morocco,  28th  July,  1760.     24th  May,  1783. 

Treaty  between  Holland  and  Morocco,  concerns  all  Christian  nations, 
especially  England  and  Spain,  15th  May,  1786.  8th  April,  1791.  14th 
June,  1801.  Explained  and  renewed  by,  19th  January,  1824. 

France  and  Morocco,  28th  May,  1767.  Additional  articles  by  Treaty 
of,  27th  May,  1824.  16th  September,  1836.  10th  September,  1844. 

Denmark  and  Morocco,  25th  July,  1767. 

Holland  and  Morocco,  29th  June,  1777.  15th  May,  1786  (vide  supra). 
2nd  December,  1791. 

Tuscany  and  Morocco,  6th  February,  1778. 

North  American  United  States  and  Morocco,  1st  January,  1787.  16th 
September,  1836. 

Spain  and  Morocco,  20th  October,  1789.  1st  March,  1799.  6th  May, 
1848. 

Tripoli. 

Tripoli  with  Great  Britain,  22nd  July,  1762.  10th  May,  1812.  17th 
April,  1816.  29th  April,  1816,  as  to  the  Ionian  Islands.  8th  March, 
1818,  declaration  of  the  Bey. 


APPENDIX    VII.  361 

*Tripoli  with  France,  12th  December,  1774.    29th  June,  1793.  i-**™-! 
19th  June,  1801.     llth  August,  1830. 
Tripoli  with  Spain,  10th  September,  1784. 

"       with  North  American  United  States,  4th  November,  1796. 

"       with  Portugal,  14th  May,  1799. 

"       with  Sweden,  2nd  October,  1802. 

"       with  Prussia,  Firman  of  the  Ottoman  Porte,  September,  1803. 

"       with  Kingdom  of  Two  Sicilies,  29th  April,  1816. 

«       with  Sardinia,  29th  April,  1816. 

Tunis. 

Tunis  with  Great  Britajn,  22nd  June,  1762.  2nd  May,  1812.  16th 
October,  1813,  as  to  the  Ionian  Islands.  17th  April,  1816,  Declaration 
of  the  Bey.  19th  October,  1816,  the  same.  28th  May,  1822,  as  to  the 
right  of  a  certain  tax  on  imported  rice.  1st  January,  1824,  Declaration 
of  Bey.  7th  January,  1824,  same.  9th  September,  1825.  13th  April, 
1824,  Declaration  of  Bey. 

Tunis  with  France,  21st  May,  1765.  13th  September,  1770.  3rd 
June,  1774.  25th  May,  1795.  23rd  September,  1802.  15th  No- 
vember, 1824.  9th  August,  1830.  24th  October,  1832,  as  to  Coral 
Fishery. 

Tunis  with  Spain,  19th  July,  1791. 

"     with  North  American  United   States,  August,   1797.      24th 

February,  1824,  modifying,  1797. 
"     with  Sweden,  1764,  renewing  Treaty  of  1736. 
"     with  Prussia,  Firman  of  the  Ottoman  Porte,  1803. 
"     with  Kingdom  of  Two  Sicilies,  17th  April,  1816. 
«     with  Sardinia,  17th  April,  1816.     22nd  February,  1832. 
"     with  Belgium,  14th  October,  1839. 


APPENDIX  VII.    PAGE  263. 

PRESCRIPTION. 

(Extract  from  the   Commentaries  of  Donettus.      (lib.  iv.  c.  iv.  p.  334.) 
De  usucapionibus  longi  temporis  prcescriptionibus,  &c.) 

"  POSTREMO  etiam  privata  traditione  res  alienge  invitis  dominis  ad  nos 
transeunt  jure  civili,  si  usus  et  justa  possessio  diuturnior  accesserit.  Sic 
enim  res  quseruntur  jure  civili  per  usum  et  possessionem.  Hanc  acqui- 
sitionem  nunc  referimus  *inter  eos  modos  quibus  invito  dominio  p^rno-i 
acquisitio  contingit :  et  recte.  Nam  et  res  ita  habet,  ut  quamvis  L 
dominus,  nolit  rem  suam  usucapi  ab  eo,  qui  earn  bona  fide  possidet,  tamen 
per  statutum  tempus  possessa,  possessor!  acquiratur,  ut  postea  dicetur. 
Juris  quidem  interpretatione  usucapio  alienationis  species  habetur;  quasi 
existimetur  alienare,  qui  patitur  usucapi  (I.  alienationis.  D.  de  verb. 

SEPTEMBER,  1854. — 24 


302  PHILLIMORE    ON    INTERNATIONAL    LAW. 

significat.}.  Qua  ratione  et  inter  genera  alienationis  usucapio  recenseri 
solet  in  ratione  dominii  amittendi,  de  quo  sou  loco,  sed  ductum  hoc  est 
ex  eo,  quod  videtur,  et  quod  ut  plurimum  accidit :  quando  quidem  ex- 
istiraatur  unusquisque  scire  res  suas,  et  a  quo  possideantur,  et  cum  sciet, 
posse  interrumpere  usucapionem  rein  suam  repetendo.  Verum  hoc  non 
semper  ita  fit.  Quid  enim,  si  heres  ignoret  res  aliquas  hereditarias,  quas 
ab  alio  possidentur  ?  Quid  si  sciat  dominus  rem  suam  ab  aliquo  possi- 
deri,  sed  non  audeat  cum  eo  contendere  judicio,  quia  ejus  potentiam 
metuat  ?  Quid,  si  ideo  non  interpellet  possessorem,  quia  in  jure  errans 
putet  nihilominus  sibi  jus  suum  semper  salvum  manere  ?  In  quibus 
omnibus  nemo  dicet,  si  res  usucapitur  aliter  quam  invito  domino,  posses- 
sor! acquiri.  Constat  tamen  acquiri.  Hoc  ergo  sentio,  etsi  ita  res  pos- 
sideatur  invito  domino,  tamen  si  possideatur  per  legitimum  tempus,  im- 
pleri  usucapionem  proinde  et  acquisitionem  invito  domino  :  quse  ideo  ad 
hunc  locum  pertinet."^) 


APPENDIX  VIII.    PAGE  397. 

EIGHT   OP  JURISDICTION   OVER   PERSONS   AND   THINGS. 

"  16  &  17  Viet.  c.  107. — An  Act  to  amend  and  consolidate  the  Laws 
relating  to  the  Customs  of  the  United  Kingdom  and  of  the  Isle  of  Man, 
and  certain  Laws  relating  to  Trade  and  Navigation  and  the  British 
Possessions.  [20th  August,  1853.] 

"SEC.  150. — The  following  good  smay,  by  Proclamation  or  Order  in 
Council,  be  prohibited  either  to  be  exported  or  carried  coastwise  : — arms, 
ammunition,  and  gunpowder,  military  and  naval  stores,  and  any  articles 
which  her  Majesty  shall  judge  capable  of  being  converted  into  or  made 
useful  in  increasing  the  quantity  of  military  or  naval  stores,  provisions, 
or  any  sort  of  victual  which  may  be  used  as  food  by  man,  and  if  any 
r  Finn  *g°0(^s  so  prohibited  shall  be  exported  from  the  United  King- 
-I  dom,  or  carried  coastwise  or  be  water-borne  to  be  so  exported  or 
carried,  they  shall  be  forfeited." 

In  accordance  with  the  provisions  of  this  Statute,  soon  after  the  break- 
ing out  of  the  present  war  with  Kussia  (Saturday,  February  18,  1854), 
the  Queen  issued  the  following  Proclamation  : — 

"BY  THE  QUEEN— A  PROCLAMATION. 

"VICTORIA    E. 

"Whereas,  by  the  Customs  Consolidation  Act,  1853,  certain  goods 
may  be  prohibited  either  to  be  exported  or  carried  coastwise  ;  and  whereas 
We,  by  and  with  the  advice  of  our  Privy  Council,  deem  it  expedient  and 
necessary  to  prohibit  the  goods  hereinafter-mentioned  either  to  be  ex- 
ported or  carried  coastwise ;  We,  by  and  with  the  advice  aforesaid,  do 

(t)  Hugonis  Donelli  Comment,  de  Jure  Civili  (Franco.  1589),  lib.  iv.  c.  iv.  p.  334. 


APPENDIX    VIII.  363 

hereby  order  and  direct  that,  from  and  after  the  date  hereof,  all  ARMS, 
AMMUNITION,  and  GUNPOWDER,  MILITARY  and  NAVAL  STORES,  and 
the  following  articles — being  articles  which  we  have  judged  capable  of 
being  converted  into,  or  made  useful  in  increasing  the  quantity  of  mili- 
tary or  naval  stores — that  is  to  say,  marine  engines,  screw  propellers, 
paddle  wheels,  cylinders,  cranks,  shafts,  boilers,  tubes  for  boilers,  boiler 
plates,  fire  bars,  and  every  article  or  any  other  component  part  of  an 
engine  or  boiler,  or  any  article  whatsoever  which  is,  or  can,  or  may  be- 
come applicable  for  the  manufacture  of  marine  machinery,  shall  be  and 
the  same  are  hereby  prohibited  either  to  be  exported  from  the  United 
Kingdom  or  carried  coastwise. 

"  Given  at  our  Court  at  Buckingham  Palace,  this  eighteenth  day  of 
February,  in  the  .year  of  our  Lord  One  thousand  eight  hundred 
and  fifty-four,  and  in  the  seventeenth  year  of  Our  Reign. 

«  GOD  SAVE  THE  QUEEN." 


The  Foreign  Enlistment  Act  (59  Geo.  III.  cap.  69)  referred  to  in  the 
text  is  as  follows  :— (uj 

An  Act  to  prevent  tlie  Enlisting  or  Engagement  of  his  Majesty's  Subjects 
to  serve  in  Foreign  Service,  and  the  fitting  out  or  equipping,  in  his 
Majesty's  Dominions,  Vessels  for  Warlike  Purposes,  without  his  Ma- 
jesty's License.  [3rd  July,  1819.] 

WHEREAS  the  enlistment  or  engagement  of  His  Majesty's  subjects  to 
serve  in  war  in  foreign  service,  without  His  Majesty's  license,  r^rAK-i 
*and  the  fitting  out  and  equipping  and  arming  of  vessels  by  His  L 
Majesty's  subjects,  without  His  Majesty's  license,  for  warlike  operations 
in  or  against  the  dominions  or  territories  of  any  foreign  prince,  state, 
potentate,  or  persons  exercising  or  assuming  to  exercise  the  powers  of 
government  in  or  over  any  foreign  country,  colony,  province,  or  part  of 
any  province,  or  against  the  ships,  goods,  or  merchandize  of  any  foreign 
prince,  state,  potentate,  or  persons  as  aforesaid,  or  their  subjects,  may 
be  prejudicial  to  and  tend  to  endanger  the  peace  and  welfare  of  this 
kingdom  :  And  whereas  the  laws  in  force  are  not  sufficiently  effectual  for 
preventing  the  same  :  Be  it  therefore  enacted  by  the  king's  most  excel- 
lent Majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual 
and  temporal,  and  commons,  in  this  present  Parliament  assembled,  and 
by  the  authority  of  the  same,  that  from  and  after  the  passing  of  this 
Act,  an  Act  passed  in  the  ninth  year  of  the  reign  of  his  late  Majesty 
king  George  the  Second,  intituled  "  An  Act  to  prevent  the  listing  His 
Majesty's  Subjects  to  serve  as  Soldiers  without  His  Majesty's  License  :" 
and  also  an  Act  passed  in  the  twenty-ninth  year  of  the  reign  of  his  said 
late  Majesty,  king  George  the  Second,  intituled  "  An  Act  to  prevent 
His  Majesty's  Subjects  from  serving  as  Officers  under  the  French  King; 
and  for  better  enforcing  an  Act  passed  in  the  Ninth  Year  of  His  pre- 

(M)  "  Non  est  singulis  concedendum  quod  per  magistratum  fieri  potest." — Dig. 
4.-6.     De  Reg.  Jur. 


364:        PHILLIMOEE     ON     INTERNATIONAL     LAW. 

sent  Majesty's  Reign,  to  prevent  the  enlisting  His  Majesty's  Subjects  to 
serve  as  Soldiers  without  His  Majesty's  License ;  and  for  obliging  such 
of  his  Majesty's  Subjects  as  shall  accept  Commissions  in  the  Scotch  Bri- 
gade in  the  service  of  the  States  General  of  the  United  Provinces,  to 
take  the  Oaths  of  Allegiance  and  Abjuration ;"  and  also  an  Act  passed 
in  Ireland  in  the  eleventh  year  of  the  reign  of  his  said  late  Majesty  king 
Greorge  the  Second,  intituled  «  An  Act  for  the  more  effectual  prevent- 
ing the  enlisting  of  His  Majesty's  Subjects  to  serve  as  Soldiers  in 
Foreign  Service  without  his  Majesty's  License ;"  and  also  an  Act  passed 
in  Ireland  in  the  nineteenth  year  of  the  reign  of  his  said  late  Majesty 
king  George  the  Second,  intituled  "  An  Act  for  the  more  effectual  pre- 
venting His  Majesty's  Subjects  from  entering  into  Foreign  Service,  and 
for  publishing  an  Act  of  the  Seventh  year  of  King  William  the  Third, 
intituled  <  An  Act  to  prevent  Foreign  Education;'"  and  all  and  every 
the  clauses  and  provisions  in  the  said  several  acts  contained,  shall  be 
and  the  same  are  hereby  repealed. 

II.  And  be  it  further  declared  and  enacted,  That  if  any  natural-born 
subject  of  His  Majesty,  his  heirs  and  successors,  without  the  leave  or 
license  of  His  Majesty,  his  heirs  or  successors,  for  that  purpose  first  had 
and  obtained,  under  the  sign  manual  of  His  Majesty,  his  heirs  or  suc- 
cessors, or  signified  by  Order  in  Council,  or  by  proclamation  of  His 
Majesty,  his  heirs  or  successors,  shall  take  or  accept,  or  shall  agree  to 
take  or  accept,  any  military  commission,  or  shall  otherwise  enter  into  the 
military  service  as  a  commissioned  or  non-commissioned  officer,  or  shall 
en^st  or  enter  himself  to  *enlist,  or  shall  agree  to  enlist  or  to 
enter  himself  to  serve  as  a  soldier,  or  to  be  employed  or  shall 
serve  in  any  warlike  or  military  operation,  in  the  service  of  or  for  or 
under  or  in  aid  of  any  foreign  prince,  state,  potentate,  colony,  pro- 
vince, or  part  of  any  province  or  people,  or  of  any  person  or  persons 
exercising  or  asuming  to  exercise  the  powers  of  government  in  or  over 
any  foreign  country,  colony,  province,  or  part  of  any  province  or  people, 
either  as  an  officer  or  soldier,  or  in  any  other  military  capacity ;  or  if 
any  natural-born  subject  of  his  majesty  shall,  without  such  leave  or 
license  as  aforesaid,  accept,  or  agree  to  take  or  accept  any  commission, 
warrant,  or  appointment,  as  an  officer,  or  shall  enlist  or  enter  himself,  or 
shall  agree  to  enlist  or  enter  himself,  to  serve  as  a  sailor  or  marine,  or 
to  be  employed  or  engaged,  or  shall  serve  in  and  on  board  any  ship  or 
vessel  of  war,  or  in  and  on  board  any  ship  or  vessel  used  or  fitted  out, 
or  equipped  or  intended  to  be  used  for  any  warlike  purpose,  in  the  service 
of  or  for  or  under  or  in  aid  of  any  foreign  power,  prince,  state,  potentate, 
colony,  province,  or  part  of  any  province  or  people,  or  of  any  person  or 
persons  exercising  or  assuming  to  exercise  the  powers  of  government  in 
or  over  any  foreign  country,  colony,  province,  or  part  of  any  province  or 
people ;  or  if  any  natural-born  subject  of  His  Majesty  shall,  without 
such  leave  and  license  as  aforesaid,  engage,  contract,  or  agree  to  go,  or 
shall  go  to  any  foreign  state,  country,  colony,  province,  or  part  of  any 
province,  or  to  any  place  beyond  the  seas,  with  an  intent  or  in  order  to 
enlist  or  enter  himself  to  serve,  or  with  intent  to  serve  in  any  warlike 
or  military  operation  whatever,  whether  by  land  or  by  sea;  in  the  service 


APPENDIX  viir.  365 

of  or  for  or  under  or  in  aid  of  any  foreign  prince,  state,  potentate, 
colony,  province,  or  part  of  any  province  or  people,  or  in  the  service  of 
or  for  or  under  or  in  aid  of  any  person  or  persons  exercising  or  assuming 
to  exercise  the  powers  of  government  in  or  over  any  foreign  country, 
colony,  province,  or  any  part  of  any  province  or  people,  either  as  an  officer 
or  a  soldier  or  in  any  other  military  capacity,  or  as  an  officer,  or  sailor, 
or  marine,  in  any  such  ship  or  vessel  as  aforesaid,  although  no  enlisting 
money  or  pay  or  reward  shall  have  been  or  shall  be  in  any  or  either  of 
the  cases  aforesaid  actually  paid  to  or  received  by  him,  or  by  any  person 
to  or  for  his  use  or  benefit;  or  if  any  person  whatever  within  the  United 
Kingdom  of  Great  Britain  and  Ireland,  or  in  any  part  of  His  Majesty's 
dominions  elsewhere,  or  in  any  country,  colony,  settlement,  island,  or  place 
belonging  to  or  subject  to  His  Majesty,  shall  hire,  retain,  engage,  or  pro- 
cure, or  shall  attempt  or  endeavour  to  hire,  retain,  engage,  or  procure,  any 
person  or  persons  whatever  to  enlist,  or  to  enter  or  engage,  to  enlist,  or 
to  serve  or  to  be  employed  in  any  such  service  or  employment  as  afore- 
said, as  an  officer,  soldier,  sailor,  or  marine,  either  in  land  or  sea  service, 
for  or  under  or  in  aid  of  any  foreign  prince,  state,  potentate,  colony,  pro- 
vince, or  part  of  any  province  or  people,  or  for  or  under  or  in  aid  of  any 
person  or  persons  exercising  or  assuming  to  exercise  *any  powers 
of  government  as  aforesaid,  or  to  go  or  to  agree  to  go  or  embark 
from  any  part  of  His  Majesty's  dominions,  for  the  purpose  or  with 
intent  to  be  enlisted,  entered,  engaged  or  employed  as  aforesaid,  whether 
any  enlisting  money,  pay,  or  reward  shall  have  been  or  shall  be  actually 
given  or  received,  or  not;  in  any  or  either  of  such  cases  every  person  so 
offending  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  being  con- 
victed thereof,  upon  any  information  or  indictment,  shall  be  punishable 
by  fine  and  imprisonment,  or  either  of  them,  at  the  discretion  of  the 
Court  before  which  such  offender  shall  be  convicted. 

III.  Provided  always  and  be  it  enacted,  That  nothing  in  this  Act  con- 
tained shall  extend  or  be  construed  to  extend  to  render  any  person  or  per- 
sons liable  to  any  punishment  or  penalty  under  this  Act  who  at  any  time 
before  the  first  day  of  August  One  thousand  eight  hundred  and  nineteen, 
within  any  part  of  United  Kingdom  or  of  the  Islands  of  Jersey,  Guern- 
sey, Alderney,  or  Sark,  or  at  any  time  before  the  first  day  of  November 
One  thousand  eight  hundred  and  nineteen  in  any  part  or  place  out  of 
the  United  Kingdom  or  of  the  said  Islands,  shall  have  taken  or  accepted, 
or  agree  to  take  or  accept,  any  military  commission,  or  shall  have  other- 
wise enlisted  into  any  military  service  as  a  commissioned  or  non-commis- 
sioned officer,  or  shall  have  enlisted,  or  entered  himself  to  enlist,  or 
shall  have  agreed  to  enlist  or  to  enter  himself  to  serve  as  a  soldier,  or  shall 
have  served,  or  having  so  served  shall,  after  the  said  first  day  of  August 
One  thousand  eight  hundred  and  nineteen,  continue  to  serve  in  any  war- 
like or  military  operation,  either  as  an  officer  or  soldier  or  in  any  other 
military  capacity,  or  shall  have  accepted  or  agreed  to  take  or  accept,  any 
commission,  warrant,  or  appointment  as  an  officer,  or  shall  have  enlisted 
or  entered  himself  to  serve,  or  shall  have  served,  or  having  so  served 
shall  continue  to  serve  as  a  sailor  or  marine,  or  shall  have  been  employed 
or  engaged  or  shall  have  served,  or  having  so  served  shall  after  the  said 


366  PHILLIMORE     ON    INTERNATIONAL    LAW. 

first  day  of  August  continue  to  serve  in  and  on  board  any  ship  or  vessel 
of  war  used  or  fitted  out  or  equipped  or  intended  for  any  warlike  pur- 
pose, or  shall  have  engaged,  or  contracted  or  agreed  to  go,  or  shall  have 
gone  to,  or  having  so  gone  to  shall  after  the  said  first  day  of  August 
continue  in  any  foreign  state,  country,  colony,  province,  or  part  of  a 
province  or  to  or  in  any  place  beyond  the  seas,  unless  such  person  or 
persons  shall  embark  at  or  proceed  from  some  port  or  place  within  the 
United  Kingdom,  or  the  islands  of  Jersey,  Guernsey,  Alderney,  or  Sark, 
with  intent  to  serve  as  an  officer,  soldier,  sailor,  or  marine,  contrary  to 
the  provisions  of  this  Act,  after  the  said  first  day  of  August,  or  shall 
embark  or  proceed  from  some  port  or  place  out  of  the  United  Kingdom, 
or  the  islands  of  Jersey,  Guernsey,  Alderney,  or  Sark,  with  such  intent 
as  aforesaid,  after  the  said  first  day  of  November,  or  who  shall  before 
the  passing  of  this  Act,  and  within  the  said  United  Kingdom  or  the 
r*^n»T  sa^  islands,  or  before  the  first  of  *November  One  thousand  eight 
-1  hundred  and  nineteen,  in  any  port  or  place  out  of  the  said 
United  Kingdom  or  the  said  islands,  have  hired,  retained,  engaged,  or 
procured,  attempted  or  endeavoured  to  hire,  retain,  engage,  or  procure, 
any  person  or  persons  whatever  to  enlist  or  to  enter,  or  to  engage  to 
enlist  or  to  serve  or  be  employed  in  any  such  service  or  employment  as 
aforesaid,  as  an  officer,  soldier,  sailor,  or  marine,  either  in  land  or  sea 
service,  or  to  go  or  agree  to  go  or  embark  for  the  purpose  or  with  the 
intent  to  be  so  enlisted,  entered,  or  engaged  or  employed,  contrary  to  the 
prohibitions  respectively  in  this  Act  contained,  anything  in  this  act  con- 
tained to  the  contrary  in  anywise  notwithstanding,  but  that  all  and  every 
such  persons  and  person  shall  be  in  such  state  and  condition,  and  no 
other,  and  shall  be  liable  to  such  fines,  penalties,  forfeitures,  and  disa- 
bilities, and  none  other,  as  such  person  or  persons  was  or  were  liable  and 
subject  to  before  the  passing  of  this  Act,  and  as  such  person  or  persons 
would  have  been  in  and  been  liable  and  subject  to  in  case  this  Act  and 
the  said  recited  Acts  by  this  Act  repealed  had  not  been  passed  or  made. 
IV.  And  be  it  further  enacted,  That  it  shall  and  may  be  lawful  for 
any  justice  of  the  peace  residing  at  or  near  to  any  port  or  place  within 
the  United  Kingdom  of  Great  Britain  and  Ireland,  where  any  offence 
made  punishable  by  this  act  as  a  misdemeanor  shall  be  committed,  on 
information  on  oath  of  any  such  offence,  to  issue  his  warrant  for  the 
apprehension  of  the  offender,  and  to  cause  him  to  be  brought  before  such 
justice  or  any  justice  of  the  peace  ;  and  it  shall  be  lawful  for  the  justice 
of  the  peace  before  whom  such  offender  shall  be  brought  to  examine  into 
the  nature  of  the  offence  upon  oath,  and  to  commit  such  person  to  gaol, 
there  to  remain  until  delivered  by  due  course  of  law,  unless  such  offen- 
der shall  give  bail,  to  the  satisfaction  of  the  said  justice,  to  appear  and 
answer  to  any  information  or  indictment  to  be  preferred  against  him 
according  to  law  for  the  said  offence ;  and  that  all  such  offences  which 
shall  be  committed  within  that  part  of  the  United  Kingdom  called  Eng- 
land shall  and  may  be  proceeded  and  tried  in  His  Majesty's  Court  of 
King's  Bench  at  Westminster,  and  the  venue  in  such  case  laid  at  West- 
minster, at  the  assizes  or  session  of  oyer  and  terminer  and  gaol  delivery, 
or  at  any  quarter  or  general  sessions  of  the  peace  in  and  for  the  county 


APPENDIX    VIII.  367 

or  place  where  such  offence  was  committed ;  and  that  all  such  offences 
which  shall  be  committed  within  that  part  of  the  United  Kingdom  called 
Ireland  shall  and  may  be  prosecuted  in  His  Majesty's  Court  of  King's 
Bench  at  Dublin,  and  the  venue  be  laid  at  Dublin,  or  at  any  assizes  and 
session  of  oyer  and  terminer  and  gaol  delivery,  or  at  any  quarter  or  gen- 
eral sessions  of  the  peace  in  and  for  the  county  or  place  where  such 
offence  was  committed ;  and  all  such  offences  as  shall  be  committed  in 
Scotland  shall  and  may  be  prosecuted  in  the  Court  of  Justiciary  in  Scot- 
land, or  any  other  competent  Court  to  try  criminal  offences  committed 
within  the  county,  shire,  or  stewartry  *within  which  such  offence  r*r  AQ-I 
was  committed ;  and  where  any  offence  made  punishable  by  this  "- 
Act  as  a  misdemeanor  shall  be  committed  out  of  the  said  United  King- 
dom, it  shall  be  lawful  for  any  justice  of  the  peace  residing  near  to  the 
port  or  place  where  such  offence  shall  be  committed  on  information 
on  oath  of  any  such  offence,  to  issue  his  warrant  for  the  apprehension  of 
the  offender;  and  to  cause  him  to  be  brought  before  such  justice,  or  any 
other  justice  of  the  peace  for  such  place ;  and  it  shall  be  lawful  for  the 
justice  of  the  peace  before  whom  such  offender  shall  be  brought,  to  exa- 
mine into  the  nature  of  the  offence  upon  oath,  and  commit  such  person 
to  gaol  there  to  remain  till  delivered  by  due  course  of  law,  or  otherwise 
to  hold  such  offender  to  bail  to  answer  for  such  offence  in  the  superior 
court  competent  to  try  and  having  jurisdiction  to  try  criminal  offences 
committed  in  such  port  or  place  ;  and  all  such  offences  committed  at  any 
place  out  of  the  said  United  Kingdom  shall  and  may  be  prosecuted  and 
tried  in  any  superior  court  of  His  Majesty's  dominions  competent  to  try 
and  having  jurisdiction  to  try  criminal  offences  committed  at  the  place 
where  such  offence  shall  be  committed. 

V.  And  be  it  further  enacted,  That  in  case  any  ship  or  vessel  in  any  port 
or  place  within  His  Majesty's  dominions  shall  have  on  board  any  such  person 
or  persons  who  shall  have*been  enlisted  or  entered  to  serve,  or  shall  have 
engaged  or  agreed  or  been  procured  to  enlist  or  enter  or  serve,  or  who 
shall  be  departing  from  his  Majesty's  dominions  for  the  purpose  and  with 
the  intent  of  entering  to  serve  or  to  be  employed,  or  of  serving  or  being 
engaged  or  employed  in  the  service  of  any  foreign  prince,  state,  or  poten- 
tate, colony,  province,  or  part  of  any  province  or  people,  or  of  any  per- 
son or  persons  exercising  or  assuming  to  exercise  the  powers  of  govern- 
ment in  or  over  any  foreign  colony,  province,  or  part  of  any  province  .or 
people,  either  as  an  officer,  soldier,  sailor,  or  marine,  contrary  to  the  pro- 
visions of  this  Act,  it  shall  be  lawful  for  any  of  the  principal  officers  of 
His  Majesty's  customs  where  any  such  officers  of  the  customs  shall 
be,  and  in  any  part  of  His  Majesty's  dominions  in  which  there  are 
no  officers  of  His  Majesty's  customs  for  any  governor  or  .persons  hav- 
ing the  chief  civil  command,  upon  information  on  oath  given  before 
them  respectively,  which  oath  they  .  are  hereby  respectively  authorized 
and  empowered  to  administer,  that  such  person  .or  persons  as  aforesaid  is 
or  are  on  board  such  ship  or  vessel,  to  detain  and  prevent  any  such  ship 
or  vessel  or  to  cause  such  ship  or  vessel  to  be  detained  and  prevented  from 
proceeding  to  sea  on  her  voyage  with  such  persons  as  aforsaid  on  board  : 
Provided  nevertheless,  That  no  principal  officer,  governor,  or  person  shall 
act  as  aforesaid,  upon  such  information  upon  oath  as  aforesaid,  unless 


368  PHILLIMORE     ON    INTERNATIONAL    LAW. 

the  party  so  informing  shall  not  only  have  deposed  in  such  information 
that  the  person  or  persons  on  board  such  ship  or  vessel  hath  or  have  been 
enlisted  or  entered  to  serve,  or  hath  or  have  engaged  or  agreed  or  been 
r*^im  Procure(i  to  *enlist  or  enter  or  serve,  or  is  or  are  departing  as 
-1  aforesaid,  for  the  purpose  and  with  the  intent  of  enlisting  or  en- 
tering to  serve  or  to  be  employed,  or  of  serving  or  being  engaged  or  em- 
ployed, in  such  service  as  aforesaid,  but  shall  also  have  set  forth  in 
such  information  upon  oath  the  facts  or  circumstances  upon  which  he 
forms  his  knowledge  or  belief  enabling  him  to  give  such  information 
upon  oath ;  and  that  all  and  every  person  and  persons  convicted  of  wilfully 
false  swearing  in  any  such  information  upon  oath  shall  be  deemed  guilty  of 
and  suffer  the  penalties  on  persons  convicted  of  wilful  and  corrupt  perjury. 

VI.  And  be  it  further  enacted,  That  if  any  master  or  other  person 
having  or  taking  the  charge  or  command  of  any  ship  or  vessel,  in  any 
part  of  the  United  Kingdom  of  Great  Britain  and  Ireland  or  in  any  part 
of  His  Majesty's  dominions  beyond  the  seas,  shall  knowingly  and  will- 
ingly take  on  board,  or  if  such  master  or  other  person  having  the  com- 
mand of  any  such  ship  or  vessel,  or  any  owner  or  owners  of  any  such 
ship  or  vessel,  shall  knowingly  engage  to  take  on  board  any  person  or 
persons  who  shall  have  been  enlisted  or  entered  to  serve,  or  shall  have 
engaged  or  agreed  or  been  procured  to  enlist  or  enter  or  serve,  or  who 
shall  be  departing  from  His  Majesty's  dominions  for  the  purpose  and 
with  the  intent  of  enlisting  or  entering  to  serve,  or  to  be  employed,  or  of 
serving  or  being  engaged  or  employed,  in  any  naval  or  military  service 
contrary  to  the  provisions  of  this  Act,  such  master  or  owner  or  other 
person  as  aforesaid  shall  forfeit  and  pay  the  sum  of  Fifty  pounds  for 
each  and  every  such  person  so  taken  or  engaged  to  be  taken  on  board  j 
and  moreover  every  such  ship  or  vessel,  so  having  on  board,  conveying, 
carrying,  or  transporting  any  such  person  or  persons,  shall  and  may  be 
seized  and  detained  by  the  collector,  comptroller,  surveyor,  or  other  officer 
of  the  customs,  until  such  penalty  or  penalties  shall  be  satisfied  and  paid, 
or  until  such  master  or  person,  or  the  owner  or  owners  of  such  ship  or 
vessel,  shall  give  good  and  sufficient  bail,  by  recognizance  before   one 
of  His  Majesty's  justices  of  the  peace,  for  the  payment  of  such  penalty 
or  penalties. 

VII.  And  be  it  further  enacted,  That  if  any  person,  within  any  part 
of  the  United  Kingdom  or  in  any  part  of  His  Majesty's  dominions  beyond 
the  seas,  shall,  without  the  leave  and  license  of  His  Majesty  for  that  pur- 
pose first  had  and  obtained  as  aforesaid,  equip,  furnish,  fit  out,  or  arm, 
or  attempt  or  endeavour  to  equip,  furnish,  fit  out,  or  arm,  or  procure  to 
be  equipped,  furnished,  fitted  out,  or  armed,  or  shall  knowingly  aid, 
assist,  or  be  concerned  in  the  equipping,  furnishing,  fitting  out,  or  arming 
of  any  ship  or  vessel,  with  intent  or  in  order  that  such  ship  or  vessel  shall 
be  employed  in  the  service   of  any  foreign  prince,  state,  or  potentate, 
or  of  any  foreign  colony,  province,  or  part  of  any  province  or  people,  or 
of  any  person  or  persons  exercising  or  assuming  to  exercise  any  powers 
of  government  in  or  over  any  foreign  state,  colony,  province,  or  part  of 

*anj  province  or  people,  as  a  transport  or  store  ship,  or  with  in- 
tent  to  cruise  or  commit  hostilities  against  any  prince,  state,  or 


APPENDIX    VIII.  369 

» 

potentate,  or  against  the  subjects  or  citizens  of  any  prince,  state,  or  poten- 
tate, or  against  the  persons  exercising  or  assuming  to  exercise  the  powers  of 
government  in  any  colony,  province  or  part  of  any  province  or  country,  or 
against  the  inhabitants  of  any  foreign  colony,  province,  or  part  of  any  pro- 
vince or  country,  with  whom  His  Majesty  shall  not  then  be  at  war;  or 
shall,  within[the  United  Kingdom,  or  any  of  His  Majesty's  dominions,  or  in 
any  settlement,  colony,  territory,  island,  or  place  belonging  or  subject  to 
His  Majesty,  issue  or  deliver  any  commission  for  any  ship  or  vessel,  to 
the  intent  that  such  ship  or  vessel  shall  be  employed  as  aforesaid,  every 
such  person  so  offending  shall  be  deemed  guilty  of  a  misdemeanor  and 
shall,  upon  conviction  thereof,  upon  any  information  or  indictment,  be 
punished  by  fine  and  imprisonment,  or  either  of  them,  at  the  discretion 
of  the  Court  in  which  such  offender  shall  be  convicted ;  and  every  such 
ship  or  vessel,  with  the  tackle,  apparel,  and  furniture,  together  with  all 
the  materials  arms,  ammunition,  and  stores  which  may  belong  to  or  be 
on  board  of  any  such  ship  or  vessel,  shall  be  forfeited ;  and  it  shall  be 
lawful  for  any  officer  of  His  Majesty's  customs  or  excise,  or  any  officer 
of  His  Majesty's  navy  who  is  by  law  empowered  to  make  seizures  for 
any  forfeiture  incurred  under  any  of  the  laws  of  customs  or  excise,  or  the 
laws  of  trade  and  navigation,  to  seize  such  ships  and  vessels  as  aforesaid, 
and  in  such  places  and  in  such  manner  in  which  the  officers  of  His  Ma- 
jesty's customs  or  excise  and  the  officers  of  His  Majesty's  navy  are 
empowered  respectively  to  make  seizures  under  the  laws  of  customs 
and  excise,  or  under  the  laws  of  trade  and  navigation ;  and  that  every 
such  ship  and  vessel,  with  the  tackle,  apparel,  and  furniture,  together 
with  all  the  materials,  arms  ammunition,  and  stores,  which  may  belong 
to  or  be  on  board  of  such  ship  or  vessel,  may  be  prosecuted  and  con- 
demned in  the  like  manner  and  in  such  courts  as  ships  or  vessels  may 
be  prosecuted  and  condemned  for  any  breach  of  the  laws  made  for  the 
protection  of  the  revenues  of  customs  and  excise,  or  of  the  laws  of  trade 
and  navigation. 

VIII.  And  be  it  further  enacted,  That  if  any  person,  in  any  part  of 
the  United  Kingdom  of  Great  Britain  and  Ireland  or  in  any  part  of  His 
Majesty's  dominions  beyond  the  seas,  without  the  leave  and  license  of 
His  Majesty  for  that  purpose  first  had  and  obtained  as  aforesaid,  shall, 
by  adding  to  the  number  of  the  guns  of  such  vessel,  or  by  changing 
those  on  board  for  other  guns,  or  by  the  addition  of  any  equipment 
for  war,  increase  or  augment,  or  procure  to  be  increased  or  augmented, 
or  shall  be  knowingly  concerned  in  increasing  or  augmenting,  the  war- 
like force  of  any  ship  or  vessel  of  war,  or  cruiser,  or  other  armed 
vessel,  which  at  the  time  of  her  arrival  in  any  part  of  the  United  King- 
dom or  any  of  His  Majesty's  dominions  was  a  ship  of  war,  cruizer, 
or  armed  vessel  in  the  service  *of  any  foreign  prince,  state,  or  p,,,,..^,-. 
potentate,  or  of  any  person  or  persons  exercising  or  assuming  to  L 
exercise  any  powers  of  government  in  or  over  any  colony  province,  or 
part  of  any  province  or  people  belonging  to  the  subjects  of  any  such 
prince,  state,  or  potentate,  or  to  the  inhabitants  of  any  colony,  province, 
or  part  of  any  province  or  country  under  the  control  of  any  person  or 
persons  so  exercising  or  assuming  to  exercise  the  powers  of  government, 


370  PHILLIMORE    ON    INTERNATIONAL    LAW. 

every  such  person  so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  upon  being  convicted  thereof  upon  any  information  or  indict- 
ment, be  punished  by  fine  and  imprisonment,  or  either  of  them,  at  the 
discretion  of  the  Court  before  which  such  offender  shall  be  convicted. 

IX.  And  be  it  further  enacted,  That  offences  made  punishable  by  the 
provisions  of  this  Act,  committed  out  of  the  United  Kingdom,  may  be 
prosecuted  and  tried  in  His  Majesty's  Court  of  King's  Bench  at  West- 
minster, and  the  venue  in  such  case  laid  at  Westminster  in  the  county 
of  Middlesex. 

X.  And  be  it  further  enacted,  That  any  penalty  or  forfeiture  inflicted 
by  this  Act  may  be  prosecuted,  sued  for  and  recovered  by  action  of  debt, 
bill,  plaint,  or  information,  in  any  of  His  Majesty's  Courts  of  Record  at 
Westminster  or  Dublin,  or  in  the  Court  of  Exchequer,  or  in  the  Court  of 
Session  in  Scotland,  in  the  name  of  His  Majesty's  Attorn ey-G-eneral  for 
England  or  Ireland,  or  His  Majesty's  Advocate  for  Scotland  respectively 
or  in  the  name  of  any  person  or  persons  whatsoever,  wherein  no  essoign, 
protection,  privilege,  wager  of  law,  nor  more  than  one  imparlancc,  shall 
be  allowed;  and  in  every  action  or  suit  the  person  against  whom  judg- 
ment be  given  for  any  penalty  or  forfeiture  under  this  Act  shall  pay 
double  costs  of  suit ;  and  every  such  action  or  suit  shall  and  may  be 
brought  at  any  time  within  twelve  months  after  the  offence  committed, 
and  not  afterwards ;  and  one  moiety  of  every  penalty  to  be  recovered  by 
virtue  of  this  Act  shall  go  and  be  applied  to  His  Majesty,  his  heirs  or 
successors,  and  the  other  moiety  to  the  use  of  such  person  or  persons  as 
shall  first  sue  for  the  same,  after  deducting  the  charges  of  prosecution 
from  the  whole. 

XL  And  be  it  further  enacted,  That  if  any  action  or  suit  shall  be  com- 
menced, either  in  Great  Britain  or  elsewhere,  against  any  person  or  per- 
sons, for  anything  done  in  pursuance  of  this  Act,  all  rules  and  regulations, 
privileges  and  protections,  as  to  maintaining  or  defending  any  suit  or 
action,  and  pleading  therein,  or  any  costs  thereon  in  relation  to  any  acts 
matters,  or  things  done,  or  that  may  be  done  by  any  officer  of  customs  or 
excise,  or  by  any  officer  of  His  Majesty's  navy,  under  any  Act  of  Parlia- 
ment in  force  or  immediately  before  the  passing  of  this  Act,  for  the  pro- 
tection of  the  revenues  of  customs  and  excise,  or  prevention  of  smuggling 
shall  apply  and  be  in  full  force  in  any  such  action  or  suit  as  shall  be 
Brought  for  anything  done  in  pursuance  of  this  Act,  in  as  full 
and  ample  a  manner  to  all  intents  and  purposes  as  if  the  same 
privileges  and  protections  were  repeated  and  re-enacted  in  this  Act. 

XII.  Provided  always,  and  be  it  further  enacted,  That  nothing  in  this 
Act  contained  shall  extend  or  be  construed  to  extend  to  subject  to  any 
penalty  any  person  who  shall  enter  into  the  military  service  of  any 
prince,  state,  or  potentate  in  Asia,  with  leave  or  license,  signified  in  the 
usual  manner,  from  the  Governor-General  in  Council,  or  Vice-President 
in  Council,  of  Fort  William  in  Bengal,  or  in  conformity  with  any  orders 
or  regulations  issued  or  sanctioned  by  such  Governor-General  or  Vice- 
President  in  Council. 


APPENDIX    IX.  371 

APPENDIX  IX.     PAGES  375,  376. 
(Extract  from  Ortolan,  Diplomatic  de  la  Mer,  t.  ii.  p.  441.) 

"Avis  du   Conseil  d'Etat  sur  la  Competence  en  matiere  de  Delits   corn- 
mis  a  lord  des  Vaisseaux  neutres,  dans  les  Ports  et  Rades  de  France. 

[20  Novembre,  1806.] 

"  LE  Conseil  d'Etat  qui,  d'apres  le  renvoi  a  lui  fait  par  Sa  Majeste",  a 
entendue  le  rapport  de  la  section  de  legislation  sur  celui  de  grand-juge 
ministre  de  la  justice,  tendant  a  regler  les  limites  de  la  jurisdiction  que 
les  Consuls  des-  Etats-Unis  d'Amerique,  aux  ports  de  Marseille  et  d'An- 
vers,  reclament,  par  rapport  aux  delits  commis  a  bord  des  vaisseaux  de 
leur  nation,  etant  dans  les"  ports  et  rades  de  France; — Considerant  qu'un 
vaisseau  neutre  ne  peut  etre  indefiniment  considere  comme  lieu  neutre, 
et  que  la  protection  qui  lui  est  accordee  dans  les  ports  Frangais  ne 
saurait  dessaisir  a  la  juridiction  territoriale,  pour  tout  ce  qui  touche  aux 
interets  de  1'etat ; — Qu' ainsi,  le  vaisseau  neutre  admis  dans  un  port  de 
1'etat,  est  de  plein  droit  soumis  aux  lois  de  police  qui  regissent  le  lieu 
ou  il  est  re§u; — Que  les  gens  de  son  equipage  sont  egalement  justiciables 
des  tribunaux  du  pays  pour  les  delits  qu'ils  y  commettraient,  meme  a 
bord,  envers  des  personnes  e"trangeres  a  1'equipage,  ainsi  que  pour  les 
Conventions  civiles  qu'ils  pourraient  faire  avec  elles; — Mais,  que  si 
jusque-la,  la  juridiction  territoriale  est  hors  de  doute,  il  n'en  est  pas 
ainsi  a  1'geard  des  delits  qui  se  commettent  a  bord  du  vaisseau  neutre, 
de  la  part  d'un  homme  de  1'equipage ; — Qu'en  ce  cas,  les  droits  de  la 
puissance  neutre  doivent  etre  respectes,  comme  s'agissant  de  la  discipline 
interieure  du  vaisseau,  dans  laquelle  1'autorite"  locale  ne  doit  pas  s'inge"rer, 
toutes  les  fois  que  son  secours  n'est  pas  reclame,  *ou  que  la  I-^K-I ^-i 
tranquillite  du  port  n'est  pas  compromise ; — Est  d'avis  que  cette  L 
distinction,  indiquee  par  le  rapport  du  grand-juge  et  conforme  a  1'usage, 
est  la  seule  regie  qu'il  convienne  de  suivre  en  cette  matiere ; — Et  appli- 
quant  cette  doctrine  aux  deux  especes  particulieres  pour  lesquelles  ont 
reclame  les  Consuls  des  Etats-Unis ; — Considerant  que  dans  1'une  de  ces 
affaires,  il  s'agit  d'une  rixe  passee  dans  le  canot  du  navire  Americain  La 
Newton,  entre  deux  matelots  du  meme  navire,  et  dans  1'autre  d'une 
blessure  grave  faite  par  le  capitaine  en  second  du  navire  La  Sally,  a  1'un 
de  ses  matelots,  pour  avoir  dispose  du  canot  sans  son  ordre  ; 

"  Est  d'avis  qu'il  y  lieu  d'accueillir  la  reclamation,  et  d'interdire  aux 
tribunaux  fran§ais  la  connaissance  des  deux  affaires  precitees." 


(Extract  from  Martens,  Recueil  de  Traites,  t.  iv.  p.  423.) 

"  Convention  entre  le  Roi  Tres- Chretien  et  les  Etats-Unis  de  I'Amerique, 
a  I'effet  de  determiner  et  fixer  les  Fonctions  et  Prerogatives  des  Con- 
suls et  Vice-Consuls  respectifs.  [14  Novembre,  1788.] 

"Art.  XI.  Lorsque  les  dits  coupables  seront  partie  de  1'equipage  de 


3/2  PHILLIMORE    ON    INTERNATIONAL    LAW. 

1'un  des  batimens  de  leur  nation,  et  se  seront  retires  a  bord  des  dits 
navires,  ils  pourront  y  etre  saisis  et  arretes  par  1'ordre  des  juges  terri- 
toriaux :  ceux-ci  en  previendront  le  Consul  ou  le  Vice-Consul,  lequel 
pourra  se  rendre  a  bord  s'il  le  juge  a  propos :  mais  cette  prevenance  ne 
pourra  en  aucuii  cas  retarder  1'execution  de  1'ordre  dont  il  est  question. 
Les  personnes  arretees  ne  pourront  ensuite  etre  mises  en  liberte  qu'apres 
que  le  Consul  ou  Vice-Consul  en  aura  ete  pre>enu,  et  elles  lui  seront 
remises,  s'il  le  requiert,  pour  etre  reconduites  sur  les  batimens  ou  elles 
auront  etc*  arretees  ou  autres  de  leur  nation,  et  etre  renvoyees  hors  du 
pays." 


(Extract  from  Martens,  Rec.  de  Tr.  t.  iv.  p.  455.) 

"  Traite  perpetuel  d1  Amitie  et  de  Commerce  conclu  en  1756,  entre  Sa 
Maj.  le  Roi  de  Danemarc  et  de  Norvege  etc.  etc.,  et  la  Serenissime 
Republigue  de  Genes,  confirme  et  rectifie  en  1789,  dans  lequel  a  ete 
insure  I' Accord  pour  V Extradition  reciproque  des  Malfaiteurs  et  De- 
serteurs.  [30  Juillet,  1789.] 

"  Art.  XXVI.  II  est  aussi  expressement  stipule,  qu'aucun  capitaine 
r#_^  _  et  patron  d'un  batiment  marchand  ne  doit  recevoir,  ni  receler  *a 
J  son  bord,  aucun  sujet  fugitif  de  la  puissance,  dans  le  port  de 
laquelle  il  se  trouve.  Si  le  cas  en  arrivait,  le  capitaine  lui-meme  doit 
etre  tenu  a  denoncer,  remettre  et  consigner  de  bonne  foi  au  Gouverne- 
ment  le  criminel,  le  de*serteur,  ou  le  sujet  vagabond,  qui  se  serait  refugie 
a.  son  bord;  et  dans  le  cas  d'un  soupyon  que  le  capitaine  d'un  batiment 
marchand  recelat  quelque  fugitif,  et  qu'il  exit  refuse  de  le  d£livrer  sur 
la  premiere  sommation  qui  lui  en  aurait  e'te'  faite,  le  Gouvernement  sera 
autorisd  a  faire  a  son  bord  les  rechercb.es  qu'il  jugera  a  propos  pour  s'en 
e"claircir,  et  d'en  tirer  de  force  le  fugitif,  s'il  s'y  trouvait ;  bien  entendu 
que  le  Consul  ou  Vice-Consul  du  capitaine  marchand  aura  ete  prevenu 
prealablement  de  la  part  du  Gouvernement  de  la  perquisition  qu'il  est 
intentionn6  de  faire  a  bord  du  vaisseau,  afin  qu'il  puisse  y  assister  et 
veiller  au  bon  ordre ;  aussi  cette  recherche  s'executera-t-elle  par  des 
soldats,  et  non  pas  par  les  gens  ordinaires  de  la  police,  ou  les  sbirres. 

"  De  meme  aussi  le  Gouvernement  du  port  ou  se  trouve  un  batiment 
marchand  d'une  des  parties  contractantes,  pretera  mainforte  pour  la  saisie 
d'un  criminel  fugitif  a  la  premiere  requisition  du  Consul  ou  Vice-Consul 
de  la  nation  qui  aurait  commis  quelque  delit  a  bord  de  ce  vaisseau,  et 
qui  se  serait  sauve*  a  terre.  Le  Gouvernement  se  pretera  a  faire  garder 
dans  les  prisons  ordinaires  et  convenables  les  criminels,  dont  le  Consul 
eft  t  a  faire  assurer  les  personnes,  soit  pour  les  traduire  aux  tribunaux 
territoriaux  qui  doivent  connaitre  du  delit,  soit  en  punition  de  quelque 
desordre  commis  a  bord  des  vaisseaux  de  sa  nation,  moyennant  la  boni- 
fication des  fraix,  qui  seront  a  la  charge  du  Consul,  ainsi  que  ces  derniers 
prisonniers  resteront  a  sa  disposition. 

"  Les  deux  parties  contractantes  ne  souffriront  pas  non  plus,  qu'on 


APPENDIX     X.  373 

debauche,  seduise,  ou  enrolle  personne  des  equipages  des  vaisseaux  d'une 
d'elles,  qui  se  trouvent  dans  les  ports  de  la  domination  de  1'autre ;  en 
pareil  cas  les  magistrats  et  officiers,  auxquels  recourra  le  Consul,  ou  le 
capitaine  lui-meme,  ou  son  recommandataire,  donneront  prompte  et 
efficace  assistance  pour  retrouver  et  remettre  au  bord  le  marinier  qui  s'y 
serait  soustrait. 

"Les  soldats  deserteurs  ayant  etc  nommement  compris  parmi  les 
fugitifs  qui  doivent  etre  rendus  dans  les  territoires  par  les  vaisseaux  de 
guerre  et  des  batimens  marchands,  ou  ils  se  seraient  refugies,  il  a  ete 
expressement  stipule  aussi  que  les  armes,  vetemens  et  effets,  qu'ils 
auraient  apportes,  seront  rendus  avec  leurs  personnes.  De  meme,  si  un 
voleur  en  se  sauvant  cut  porte  dans  la  retraite  d'ou  il  sera  delivre,  quel- 
que  partie  des  effets  volesrils  seront  fidelement  rendus  et  restitues." 


*  APPENDIX  X.    PAGE  430.  ['316] 

EXTRADITION. — U.    S.    NORTH   AMERICA. 

(Extract  from  «  The  Times,"  July  ISth,  1852.) 

IN  the  case  of  Thomas  Kaine,  an  Irish  criminal,  claimed  by  the 
British  Government,  Mr.  Commissioner  Bringham  gave  the  following 
decision  : — 

"  The  prisoner,  Thomas  Kaine,  has  been  arrested  by  virtue  of  a  war- 
rant issued  on  the  requisition  and  complaint  of  Mr.  Anthony  Barclay, 
Her  Britannic  Majesty's  Consul  at  the  port  of  New  York,  for  the  crime 
of  an  assault,  with  intent  to  commit  murder,  within  the  dominions  of 
the  Queen  of  Great  Britain  and  Ireland.  This  warrant  was  issued  in 
conformity  with  the  stipulations  of  the  Treaty  between  the  United 
States  and  Great  Britain,  of  August  9th,  1842,  the  10th  article  of  which 
Treaty  is  as  follows : — '  It  is  agreed  that  the  United  States  and  Her 
Britannic  Majesty  shall,  upon  mutual  requisitions  by  them,  or  their  min- 
isters, officers,  or  authorities  respectively  made,  deliver  up  to  justice  all 
persons  who,  being  charged  with  the  crime  of  murder,  or  assault  with 
intent  to  commit  murder,  or  piracy,  or  arson,  or  robbery,  or  forgery,  or 
the  utterance  of  forged  paper,  committed  within  the  jurisdiction  of  either, 
shall  seek  an  asylum,  or  shall  be  found  within  the  territories  of  the  other; 
provided  that  this  shall  only  be  done  upon  such  evidence  of  criminality 
as,  according  to  the  laws  of  the  place  where  the  fugitive  or  person  so 
charged  shall  be  found,  would  justify  his  apprehension  and  commitment 
for  trial,  if  the  crime  or  offence  had  there  been  committed;  and  the  res- 
pective judges  and  other  magistrates  of  the  two  Governments  shall  have 
power,  jurisdiction,  and  authority,  upon  complaint  made  under  oath,  to 
issue  a  warrant  for  the  apprehension  of  the  fugitive  or  person  so  charged, 
that  he  may  be  brought  before  such  judges,  or  other  magistrates  res- 
pectively, to  the  end  that  the  evidence  of  criminality  may  be  heard  and 
considered;  and  if,  on  such  hearing,  the  evidence  be  deemed  sufficient 


374  PHILLIMORE     ON    INTERNATIONAL    LAW. 

to  sustain  the  charge,  it  shall  be  the  duty  of  the  examining  judge  or 
magistrate  to  certify  the  same  to  the  proper  executive  authority,  that  a 
warrant  may  issue  for  the  surrender  of  such  fugitive.  The  expense  of  such 
apprehension  and  delivery  shall  be  borne  and  defrayed  by  the  party 
who  makes  the  requisition  and  receives  the  fugitive.'  The  original 
warrant  in  this  case  was  issued  by  Mr.  James  Featherstonhaugh,  a  jus- 
tice of  the  peace  of  the  county  of  Westmeath,  Ireland,  in  which  county 
the  alleged  crime  was  committed.  The  warrant  was  produced  before  me, 
*toge*ner  with  a  copy  of  the  information  or  affidavit  upon  which 
said  warrant  was  issued,  said  copy  being  certified  according  to 
the  act  of  Congress,  by  the  justice  of  the  peace  who  issued  the  warrant, 
and  attested  by  the  oath  of  the  witness  to  be  a  true  copy.  James  Balfe, 
the  witness  who  made  the  information  or  affidavit,  states,  among  other 
things,  that  on  the  5th  day  of  April,  1851,  he  was  ploughing  some  land 
in  the  county  of  Westmeath,  when  Thomas  Kaine  came  up  to  him,  armed 
with  a  case  of  pistols,  and  after  some  conversation  respecting  some  land, 
of  which  a  man  named  Stone  had  lately  been  dispossessed,  and  respect- 
ing which  the  witness  had  been  threatened,  said  that  he  came  to  warn 
the  witness  Balfe  about  it,  and  asked  if  he  (witness)  had  a  prayer-book. 
Witness  said  that  he  had  not.  Kaine  then  said  he  had  one  himself,  and 
threw  it  on  the  ground  before  the  witness,  who  stooped  to  pick  it  up; 
that  while  stooping  Kaine  fired  one  of  the  pistols  at  him,  and  that  on 
examining  his  person  he  found  marks  of  a  bullet  and  27  shots  in  his 
side,  just  under  his  left  arm ;  that  he  then  fled,  and  that  Kaine  pursued 
him  some  distance,  but  finally  turned  back,  and  witness  saw  no  more  of 
him.  Upon  this  information,  the  said  Featherstonhaugh,  justice  of  the 
peace  for  the  county  of  Westmeath,  granted  his  warrant  for  the  appre- 
hension of  Thomas  Kaine,  the  prisoner,  upon  complaint  on  oath  made 
before  him  that  the  prisoner  had  feloniously  and  maliciously  fired  a  pistol, 
loaded  with  powder  and  lead,  at  the  said  James  Balfe,  with  intent  to 
murder  him.  This  warrant,  dated  April  5,  1851,  was  immediately  put 
into  the  hands  of  one  Martin  Meagher,  constable  of  Westmeath,  who 
made  search  for  the  prisoner,  and  was  unable  to  find  him  or  to  execute 
the  warrant.  The  said  Meagher  was  produced  before  me  as  a  witness, 
and  testified,  among  other  things,  that  he  was  acting  constable  of  the 
Irish  constabulary  of  the  county  of  Westmeath,  in  Ireland,  and  had 
been  such  constable  for  several  years;  that  he  knew  Thomas  Kaine,  the 
prisoner,  and  had  known  him  for  three  years  and  upwards;  that  he  had 
received  as  such  constable,  the  warrant  before  mentioned,  to  execute 
against  the  prisoner;  that  it  was  the  original  warrant;  that  he  saw  James 
Featherstonhaugh,  the  magistrate,  execute  it;  that  he  knew  the  said 
Featherstonhaugh  to  be  a  justice  of  the  peace  of  the  county  of  West- 
meath, in  Ireland.  He  also  testified  that  on  the  same  day  he  saw  James 
Balfe;  that  Balfe's  coat  seemed  to  be  burnt  with  powder;  that  there 
were  shot  marks  on  his  left  side ;  that  the  witness  accompanied  Balfe  to 
the  magistrate  where  he  made  the  information,  and  that  on  the  same  day 
the  witness  received  the  warrant  against  the  prisoner.  Meagher  further 
testified  that  the  order  for  his  coming  here  on  this  duty  came  from  the 
Under' Secretary  of  State,  upon  the  application  of  the  Crown  solicitor  of 


APPENDIX    X.  375 

the  county  of  "Westmeath,  and  that  there  was  a  reward  of  60Z.  offered  on 
the  7th  of  April,  1851,  for  the  apprehension  of  the  prisoner.  The  duty 
*of  the  commissioner  in  such  cases  is  to  inquire  whether  the  evi- 
dence  of  the  guilt  of  the  person  charged  would  justify  his  com- 
mitment  for  trial  according  to  the  laws  in  force  in  the  State  of  New 
York,  if  charged  with  the  crime  here.  The  examination  and  commit- 
ment of  persons  here  charged  with  such  offences  as  are  enumerated  in 
the  Treaty,  is  provided  for  by  the  law  of  New  York  (2  Rev.  St.  793, 
chap.  2),  and  would  be  complied  with  to  all  intents  and  purposes  by  tes- 
timony from  which  the  commissioner  or  magistrate  should  conclude  that 
the  offence  had  been  committed,  and  that  there  was  probable  cause  to 
believe  the  prisoner  to  have  been  guilty  thereof.  Probable  cause  is  de- 
duced from  a  state  of  facts  and  circumstances  which  afford  reasonable 
grounds  of  suspicion  of  guilt.  (1  Burr's 'Trial,  11,  14,  16;  4  Cranch, 
R.  129;  Barbour's  Criminal  Law,  455,  492,  496;  4  Chitty's  Black- 
stone,  235.)  There  is  no  question  in  my  mind  as  to  the  identity  of  the 
prisoner,  nor  that  the  offence  charged  comes  within  the  specification  of 
the  Treaty,  nor  as  to  probable  cause  of  guilt.  Technical  objections,  how- 
ever, are  taken  to  the  evidence  on  the  part  of  the  counsel  for  the  prisoner, 
principally — 1.  That  the  official  character  of  the  person  signing  the  war- 
rant is  not  sufficiently  made  out.  From  an  inspection  of  the  original 
warrant  itself  it  appears  by  an  indorsement  thereon,  that  proof  upon  oath 
was  made  on  the  llth  of  April,  1851,  before  one  of  the  justices  of  the 
peace  for  the  borough  of  Liverpool,  that  the  name  subscribed  to  the  war- 
rant was  of  the  handwriting  of  the  justice  who  signed  it,  and  therefore 
authority  was  given  for  the  execution  of  the  warrant  within  the  said 
borough.  But  as  to  this  point  the  testimony  of  the  witness  Meagher  is 
clear.  He  swears  that  James  Featherstonhaugh  is  a  justice  of  the  peace 
of  the  county  of  Westmeath,  in  Ireland;  that  he  saw  him  sign  the  origi- 
nal warrant  produced  in  this  case;  and  that  the  information  was  made 
before  him  in  that  character. 

"  It  cannot  be  necessary  to  produce  or  prove  the  commission  under 
which  the  justice  of  the  peace  held  office.  Proof  that  he  publicly  dis- 
charged the  duties  of  magistrate,  and  acted  as  such,  is  prima  facie  evi- 
dence of  his  official  character.  (G-reenleaf  on  Evidence,  vol.  i.  109, 
119.) 

"  The  legal  presumption  is,  that  a  man  acting  in  a  public  office  has 
been  rightfully  appointed.  (Cow.  and  Hill's  Notes  to  Phillips  on  Evi- 
dence, p.  297,  12;  12  Wheaton  70;  <Rex  v.  Verelst/  3  Camp.  432; 
'Bishop  v.  Cone/  N.  H.  R.,  513;  and  'People  v.  Gilbert  Anthons/  N. 
P.  Rep.  191.) 

"  Lord  Ellenborough  says,  in  ( Rex  v.  Verelst/  3  Camp.  433,  that  it 
is  a  general  presumption  of  law  that  a  person  acting  in  a  public  capacity 
is  duly  authorized  to  do  so;  and  in  <  Rex  v.  Jones/  2  Camp.  R.  131, 
where  the  objection  was  taken  to  a  letter  offered  in  evidence,  purporting 
to  be  signed  by  Mr.  Pitt  and  others,  Lord  Commissioners  of  the  Trea- 
sury, that  it  was  necessary  to  *prove  those  persons  were  Lord 
Commissioners  of  the  Treasury,  and  had  authority  to  write  the 
letter,  by  producing  their  commission,  it  was  held  unnecessary,  and  the 


376  PHILLIMORE     ON    INTERNATIONAL    LAW. 

letter  was  admitted  on  proof  of  the  handwriting  of  the  three  persons  who 
had  signed  it  as  Lord  Commissioners  of  the  Treasury. 

"  2.  That  there  is  no  evidence  that  the  warrant  is  the  original  warrant. 

"  The  witness  Meagher  swears,  however,  that  it  is  the  original  warrant ; 
that  he  saw  it  signed  by  the  magistrate,  and  that  it  was  delivered  to 
him  (Meagher)  to  be  executed.  The  provisions  of  the  second  volume 
Revised  Statutes,  pp.  492-3,  relied  on  by  the  counsel  for  the  prisoner, 
are  not  applicable  in  this  case ;  because  the  28th  section  provides  that 
the  preceding  sections  of  that  article  shall  not  prevent  the  proof  of  any 
record  or  judicial  proceeding  of  the  Courts  of  any  foreign  country, 
according  to  the  rules  of  the  common  law,  in  any  other  manner  than  that 
therein  directed.  Those  sections,  therefore,  which  are  relied  upon  by 
the  counsel  for  the  prisoner,  do  not  exclude  any  mode  of  proof  which 
would  be  valid  according  to  the  rules  of  the  Common  Law.  No  parti- 
cular mode  of  proof  of  the  existence  or  genuineness  of  the  warrant  is 
required  by  the  Act  of  Congress.  Section  2,  of  the  Act  of  Congress  of 
August  12th,  1848,  giving  effect  to  certain  Treaty  stipulations,  provides 
that  in  every  case  of  complaint  as  aforesaid,  and  of  a  hearing  upon  the 
return  of  the  warrant  of  arrest,  copies  of  the  deposition  upon  which  an 
original  warrant  in  any  such  foreign  country  may  have  been  granted, 
certified  under  the  hand  of  the  person  or  persons  issuing  such  warrant, 
and  attested  upon  the  oath  of  the  party  producing  them  to  be  true  copies 
of  the  depositions,  may  be  received  in  evidence." 

"  I  have  considered  these,  as  well  as  the  other  objections  taken,  and 
not  necessary  here  to  be  recapitulated,  with  careful  deliberation  and  with 
an  anxious  desire,  on  the  one  side,  to  do  everything  required  by  the 
interests  of  justice  and  a  discharge  in  good  faith  of  the  sacred  obliga- 
tions of  our  treaty  stipulations  ;  and,  on  the  other,  to  do  nothing  incon- 
sistent with  a  proper  regard  to  the  security  of  personal  liberty." 

"  On  the  whole,  I  am  of  the  opinion  that  the  papers  offered  in  proof 
in  the  cause  are  properly  authenticated ;  and  as  the  evidence  itself,  in 
my  view,  is  sufficient  to  commit  the  prisoner,  had  the  offence  been  com- 
mitted here,  I  feel  it  my  duty  to  certify  the  proceedings  had  before  me 
tot  he  Secretary  of  State  of  the  United  States,  in  whom  is  vested  the 
power  by  the  Treaty  to  issue  a  warrant  for  the  extradition  of  the 
prisoner." 

There  appeared  to  be  much  excitement  in  New  York  among  a  portion  of 
the  Irish  population,  and  a  strong  feeling  was  exhibited  adverse  to  Kaine 
being  surrendered  under  the  Treaty.  Large  gatherings  took  place  in  the 
neighbourhood  of  the  city  prison  and  of  the  United  States  offices,  in 
P^m  conse(luence  °f  which  the  prisoner  *was  not  brought  to  Court ; 
J  the  decision  being  merely  to  certify,  under  the  Treaty,  to  the 
Secretary  of  State  at  Washington,  it  was  not  deemed  necessary.  On 
the  29th  Kaine's  counsel  sued  for  a  writ  of  habeas  corpus,  returnable  on 
the  following  day. 


APPENDIX    XI.  377 


APPENDIX  XI.     PAGE  435. 

{Extract  from  (Euvres  de  Fenelon,  t.  xxii.  p.  306,  a  fExamen  de  Con- 
science. Supplement.  Sur  la  Necessite  de  former  des  Alliances, 
tant  offensives  que  defensives,  contre  une  Puissance  etrangere  qui 
aspire  manifestement  a  la  Monarchic  universelle.} 

"  LES  Etats  voisins  les  uns  des  autres  ne  sont  pas  seulement  obliges  at 
se  trailer  mutuellement  selon  les  regies  de  justice  et  de  bonne  foi ;  ils 
doivent  encore,  pour  leur  surete  particuliere,  autant  que  pour  1'interet 
commun,  faire  une  espece  de  societe  et  de  republique  generale. 

"  II  faut  compter  qu'a  la  longue  la  plus  grande  puissance  prevaut 
toujours,  et  renverse  les  autres,  si  les  autres  ne  se  reunissent  pour  faire 
le  contrepoids.  II  n'est  pas  permis  d'esperer  parmi  les  hommes,  qu'une 
puissance  superieure  demeure  dans  les  bornes  d'une  exacte  moderation, 
et  qu'elle  ne  veuille  dans  sa  force,  que  ce  qu'elle  pourroit  obtenir  dans 
la  plus  grande  foiblesse.  Quand  meme  un  prince  seroit  assez  parfait 
pour  faire  un  usage  si  merveilleux  de  sa  prospriete,  cette  merveille  finiroit 
avec  son  regne.  L'ambition  naturelle  des  souverains,  les  flatteries  de 
leurs  conseillers,  et  la  prevention  des  nations  entieres,  ne  permettent  pas 
de  croire  qu'une  nation  qui  peut  subjuguer  les  autres,  s'en  abstienne 
pendant  des  siecles  entiers.  Un  regne  ou  eclateroit  une  justice  si 
extraordinaire,  seroit  1'ornement  de  1'histoire,  et  un  prodige  qu'on  ne 
peut  plus  revoir. 

"  II  faut  done  compter  sur  ce  qui  est  reel  et  journalier,  qui  est  que 
cbaque  nation  cherche  a  prevaloir  sur  toutes  les  autres  qui  1'environnent. 
Chaque  nation  est  done  obligee  a  veiller  sans  cesse,  pour  prevenir 
1'excessif  agrandi*sement  de  chaque  voisin  pour  sa  surete  propre.  Em- 
pecher  le  voisin  d'etre  trop  puissant,  ce  n'est  point  faire  un  mal  j  c'est  se 
garantir  de  la  servitude  et  en  garantir  ses  autres  voisins  j  en  un  mot, 
c'est  travailler  a  la  liberte,  a  la  tranquillite,  au  salut  public ;  car  1'agran- 
dissement  d'une  nation  au-dela  d'une  certaine  borne,  change  le  systeme 
general  de  toutes  les  nations  qui  ont  rapport  a  celle-la.  Par  exemple, 
toutes  les  successions  qui  sont  entrees  dans  la  rnaison  de  Bourgogne,  puis 
celles  qui  ont  eleve  la  maison  d'Autriche,  ont  change  la  face  de  toute 
1'Europe.  Toute  1'Europe  a  du  craindre  la  monarchic  universelle  sous 
*Charles-Quint,  surtout  apres  que  Frangois  ler  cut  ete  defait  et 
pris  a  Pavie.  II  est  certain  qu'une  nation  qui  n'avoit  rien  a 
demeler  directement  avec  1'Espagne,  ne  lassoit  pas  alors  d'etre  en  droit, 
pour  la  liberte  publique,  de  prevenir  cette  puissance  rapide  qui  sembloit 
prete  a  tout  engloutir. 

"  Les  particuliers  ne  sont  pas  en  droit  de  s'opposer  de  meme  a  Fac- 
croissement  des  richesses  de  leurs  voisins,  parce  qu'on  doit  supposer  que 
cet  accroissement  d'autrui  ne  peut  etre  leur  ruine.  II  y  a  des  lois  ecrites 
et  des  magistrats  pour  reprimer  les  injustices  et  les  violences  entre  les 
families  inegales  en  biens  ;  mais,  pour  les  etats,  ils  ne  sont  pas  de  meme. 
Le  trop  grand  accroissement  d'un  seul  peut  etre  la  mine  et  la  servitude 
de  tous  les  autres  qui  sont  ses  voisins :  il  n'y  a  ni  lois  ecrites,  ni  juges 

SEPTEMBER,  1854. — 25 


378  PIIILLIMOUE     ON     INTERNATIONAL     LAW. 

etablis  pour  servir  de  barriere  centre  les  invasions  du  plus  puissant.  On 
est  toujours  en  droit  de  supposer  que  le  plus  puissant,  a  la  longue,  se 
prevaudra  de  sa  force,  quand  il  n'y  aura  plus  d'autre  force  a  peu  pres 
6gale  qui  puisse  1'arreter.  Ainsi,  chaque  prince  est  en  droit  et  en  obli- 
gation de  prevenir  dans  son  voisin  cet  accroissement  de  puissance,  qui 
jetteroit  son  peuple,  et  tous  les  autres  peuples  voisins,  dans  un  danger 
procbain  de  servitude  sans  ressource. 

"  Par  exemple,  Pbilippe  II.,  roi  d'Espagne,  apres  avoir  conquis  le 
Portugal,  veut  se  rendre  le  maitre  de  1'Angleterre.  Je  sais  bien  que 
son  droit  etoit  mal  fonde,  car  il  n'en  avoit  que  par  la  reine  Marie  sa 
femme,  morte  sans  enfans.  Elizabeth,  illegititne,  ne  devoit  point  regner. 
La  couronne  appartenoit  a  Marie  Stuart  et  a  son  fils.  Mais  enfin,  sup- 
pose que  le  droit  de  Philippe  II.  exit  e"te  incontestable,  1'Europe  entiere 
auroit  eu  raison  ne"anmoins  de  s'opposer  a  son  etablissement  en  Angle- 
terre;  car  ce  royaume  si  puissant  ajoute  a  ses  etats  d'Espagne,  d'ltalie, 
de  Flandre,  des  Indes  orientales  et  occidentales,  le  mettoit  en  e"tat  de 
faire  la  loi,  surtout  par  ses  forces  maritimes,  a  toutes  les  autres  puissances 
de  la  chretiente".  Alors,  summum  jus,  summa  injuria.  Un  droit  par- 
ticulier  de  succession  ou  de  donation  devoit  ceder  a  la  loi  naturelle  de  la 
surete  de  tant  de  nations.  En  un  mot,  tout  ce  qui  renverse  Fequilibre, 
et  qui  donne  le  coup  de"cisif  pour  la  monarchic  universelle,  ne  peut  etre 
juste,  quand,  meme  il  seroit  fondle  sur  des  lois  ecrites  dans  un  pays  par- 
ticulicr.  La  raison  en  est  que  ces  lois  Ecrites  chez  un  peuple,  ne  peu- 
vent  prevaloir  sur  la  loi  naturelle  de  la  liberte  et  de  la  sfirete  commune, 
gravee  dans  les  cceurs  de  tous  les  autres  peuples  du  monde.  Quand  une 
puissance  monte  a  un  point,  que  toutes  les  autres  puissances  voisines 
ensemble  ne  peuvent  plus  lui  resistor,  toutes  ces  autres  sont  en  droit  de 
se  liguer  pour  prevenir  cet  accroissement,  apres  lequel  il  ne  seroit  plus 
temps  de  defendre  la  liberte  commune.  Mais,  pour  faire  legitimement 
ces  sortes  de  ligues,  qui  tendent  a  prevenir  un  trop  grand  accroissement 
d'un  etat,  il  faut  que  le  cas  soit  veritable  et  pressant ;  il  faut  se  conten- 
rHe-o_-.  ter  d'une  ligue  defensive,  *ou  du  moins  ne  la  faire  offensive, 
-1  qu'autant  que  la  juste  et  necessaire  defense  se  trouvera  renferraee 
dans  les  desseins  d'une  aggression ;  encore  meme  faut-il  toujours,  dans 
les  traites  de  ligues  offensives,  poser  des  bornes  precises,  pour  ne  detruire 
jamais  une  puissance  sous  pr6texte  de  la  moderer. 

Cette  attention  a  maintenir  une  espece  d'e"galite  et  d'^quilibre  entre 
les  nations  voisines,  est  ce  qui  en  assure  le  repos  commun.  Acete"gard, 
toutes  les  nations  voisines  et  liees  par  le  commerce  font  un  grand  corps 
et  une  espece  de  communaute.  Par  exemple,  la  chretiente  fait  une 
espece  de  republique  generale,  qui  a  ses  interets,  ses  craintes,  ses  precau- 
tions a  observer ;  ^ous  les  membres  qui  composent  ce  grand  corps,  se 
doivent  les  uns  aux  autres  pour  le  bien  commun,  et  se  doivent  encore  a 
eux-memes,  pour  la  surete  de  la  patrie,  de  prevenir  tout  progres  de 
quelqu'un  des  membres  qui  renverseroit  1'equilibre,  et  qui  se  tourneroit 
a  la  ruine  inevitable  de  tous  les  autres  membres  du  meme  corps.  Tout 
ce  qui  change  ou  altere  ce  systeme  general  de  1'Europe  est  trop  danger- 
eux,  et  traine  apres  soi  des  maux  infinis. 

"  Toutes  les  nations  voisines  sont  tellement  liees  par  leurs  interets  les 


APPENDIX     XI.  379 

unes  aux  autres,  et  au  gros  de  1'Europe,  que  les  moindres  progres  par- 
ticuliers  peuvent  alterer  ce  systeme  general  qui  fait  1'equilibre,  et  qui 
peut  seul  faire  la  sftrete  publique.  Otez  une  pierre  d'une  voute,  tout 
1' edifice  tombe,  parce  que  toutes  les  pierres  se  soutiennent  en  se  contre- 
poussant. 

"  L'humanite  met  done  un  devoir  mutuel  de  defense  du  salut  commun, 
entre  les  nations  voisines,  contre  un  6tat  voisin  qui  devient  trop  puissant ; 
comnie  il  y  a  des  devoirs  mutuels  entre  les  concitoyens  pour  la  liberte 
de  la  patrie.  Si  le  citoyen  doit  beaucoup  a  sa  patrie,  dont  il  est  membre, 
chaque  nation  doit  a  plus  forte  raison  bien  davantage  au  repos  et  au 
salut  de  la  republique  universelle  dont  elle  est  membre,  et  dans  laquelle 
sont  renfermees  toutes  les  patries  des  particuliers. 

"  Les  ligues  defensives  sont  done  justes  et  necessaires,  quand  il  s'agit 
veritablement  de  prevenir  une  trop  grand  puissance  qui  seroit  en  etat  de 
tout  envahir.  Cette  puissance  superieure  n'est  done  pas  en  droit  de 
rompre  la  paix  avec  les  autres  etats  inferieurs,  precisement  a  cause  de 
leur  ligue  defensive ;  car  ils  sont  en  droit  et  en  obligation  de  la  faire. 

"  Pour  une  ligue  offensive,  elle  depend  des  circonstances ;  il  faut  qu'elle 
soit  fondee  sur  des  infractions  de  paix,  ou  sur  la  detention  de  quelques 
pays  des  allies,  ou  sur  la  certitude  de  quelque  autre  fondement  semblable. 
Encore  meme  faut-il  toujours,  comme  je  1'ai  deja  dit,  borner  de  tels 
traites  a  des  conditions  qui  empechent  ce  qu'on  voit  souvent;  c'est  qu'une 
nation  se  sert  de  la  necessite  d'en  rabattre  une  autre  qui  aspire  a  la  tyran- 
nic universelle,  pour  y  aspirer  elle-meme  a  son  tour.  L'habilete,  aussi 
bien  que  la  justice  et  la  bonne  foi,  en  faisant  des  traites  d'alliance,  est  de 
les  faire  tres-precis,  tres-eloignes  de  "toutcs  equivoques,  et  exact- 
ment  bornes  a  un  certain  bien  que  vous  en  voulez  tirer  prochaine- 
ment.  Si  vous  n'y  prenez  garde,  les  engagements  que  vous  prenez  se 
tourneront  contre  vous,  en  abattant  trop  vos  ennemis,  et  en  elevant  trop 
votre  allie;  il  vous  faudra,  ou  souffrir  ce  que  vous  detruit,  ou  manquer  a 
votre  parole;  chosespresqueegalement  funestes.  Continuous  a  raisonner 
sur  ces  jmncipes,  en  prenant  1'exemple  particulier  de  la  chretiente,  qui 
est  la  plus  sensible  pour  nous. 

"II  n'y  a  que  quatre  sortes  de  systemes.  Le  premier  est  d'etre  abso- 
lument  superieur  a  toutes  les  autres  puissances,  meme  reunies  :  c'est 
1'etat  des  Romains  et  celui  de  Charlemagne.  Le  second  est  d'etre  dans 
la  chretiente  la  puissance  superieure  aux  autres,  qui  font  neanmoins  a 
peu  pres  le  contre-poids  en  se  reunissant.  Le  troisieme  est  d'etre  une 
puissance  inferieure  a  une  autre,  mais  qui  se  soutient,  par  son  union  avec 
tous  ses  voisins,  contre  cette  puissance  predominante.  Enfin,  le  qua- 
trieme  est  d'une  puissance  a  peu  pres  egale  a  une  autre,  qui  tient  tout 
en  paix  par  cette  espece  d'equilibre  qu'elle  garde  sans  ambition  et  de 
bonne  foi. 

11  L'etat  des  Romains  et  de  Charlemagne  n'est  point  un  etat  qu'il  vous 
soit  permis  de  desirer :  1°.  Paree  que,  pour  y  arriver,  il  faut  commettre 
toutes  sortes  d'injustices  et  de  violences;  il  faut  prendre  ce  qui  n'est 
point  a  vous,  et  le  faire  par  des  guerres  abominables  dans  leur  duree  et 
dans  leur  etendue.  2°.  Ce  dessein  est  tres-dangereux ;  souvent  les  etats 
perissent  par  ces  folles  ambitions.  3°.  Ces  empires  immenses,  qui  on 


380  PHILLIMORE     ON     INTERNATIONAL    LAW. 

fait  tant  de  maux  en  se  formant,  en  font,  bientot  apres,  d'autres  encore 
plus  efFrojables,  en  tombant  par  terre.  La  premiere  minorite,  ou  le  pre- 
mier regne  foible,  ebranle  les  trop  grandes  masses,  et  separe  des  peuples 
qui  ne  sont  encore  accoutumes  ni  au  joug  ni  a  1'union  mutuelle.  Alors, 
quelles  divisions,  quelles  confusions,  quelles  anarchies  irremediables ! 
On  n'a  qu'a  se  souvenir  des  niaux  qu'ont  fait  en  Occident  la  chute  si 
prompte  de  1'empire  de  Charlemagne,  et  en  Orient  le  renversement  de 
celui  d'Alexandre,  dont  les  capitaines  firent  encore  plus  de  maux  pour 
partager  ses  depouilles,  qu'il  n'en  avoit  fait  lui-meme  en  ravageant  1'Asie. 
Voila  done  le  systerne  le  plus  eblouissant,  le  plus  funeste  pour  ceux 
memes  que  viennent  a  bout  de  1'executer. 

"  Le  second  systeme  est  d'une  puissance  superieure  a  toutes  les  autres, 
qui  font  contre  elle  a  peu  pres  1'equilibre.  Cette  puissance  superieure  a 
1'avantage,  contre  les  autres,  d'etre  toute  reunie,  toute  simple,  toute 
absolue  dans  ses  ordres,  toute  certaine  dans  ses  mesures.  Mais,  a  la 
longue,  si  elle  ne  cesse  de  reunir  contre  elle  les  autres  en  excitant  la 
jealousie,  il  faut  qu'elle  succombe.  Elle  s'epuise ;  elle  est  exposee  a 
beaucoup  d'accidens  internes  et  imprevus,  ou  les  attaques  du  dehors  peu- 
vent  la  renverser  soudainement.  De  plus,  elle  s'use  pour  rien,  et  fait 
des  efforts  ruineux  pour  une  superiorite  qui  ne  lui  donne  rien  d'effectif, 
r*^9/n  e*  1°*  l'exPose  *  toutes  sortes  de  deshonneurs  et  de  dangers.  *De 
-I  tous  les  Etats,  c'est  certainement  le  plus  mauvais ;  d'autant  plus 
qu'il  ne  peut  jamais  aboutir,  dans  sa  plus  etonnante  prosperity,  qu'a 
passer  dans  le  premier  systeme,  que  nous  avons  deja  reconnu  injuste  et 
pernicieux. 

"  Le  troisieme  systeme  est  d'une  puissance  inferieure  a  une  autre, 
mais  en  sorte  que  1'inferieure,  unie  au  reste  de  1'Europe,  fait  1'equilibre 
contre  la  superieure,  et  la  sflrete  de  tous  les  autres  moindres  Etats.  Ce 
systeme  a  ses  incommodites  et  ses  inconveniens;  mais  il  risque  moins 
que  le  precedent,  parce  qu'on  est  sur  la  defensive,  qu'on  s'epuise  moins, 
qu'on  a  des  allies,  et  qu'on  n'est  point  d'ordinaire,  en  cet  etat  d'inferio- 
rite,  dans  1'aveuglement  et  dans  la  presomption  insensee  qui  menace  de 
ruine  ceux  qui  prevalent.  On  voit  presque  toujours,  qu'avec  un  peu 
de  temps,  ceux  qui  avoient  prevalu  s'usent  et  commencent  a  dechoir. 
Pourvu  que  cet  Etat  inferieur  soit  sage,  modere,  ferme  dans  ses  alliances, 
precautionne  pour  ne  leur  donner  ancun  ombrage,  et  pour  ne  rien  faire 
que  par  leur  avis  pour  1'interet  commun,  il  occupe  cette  puissance  supe- 
rieure jusqu'a  ce  qu'elle  baisse. 

"  Le  quatrieme  systeme  est  d'une  puissance  i\  peu  pres  egale  a  une 
autre,  avec  laquelle  elle  fait  1'equilibre  pour  la  surete  publique.  Etre 
dans  cet  etat,  et  n'en  vouloir  point  sortir  par  ambition,  c'est  1'etat  le  plus 
sage  et  le  plus  heureux.  Vous  etes  1'arbitre  commun ;  tous  vos  voisins 
sont  vos  amis  ;  du  moins,  ceux  qui  ne  le  sont  pas  se  rendent  par  Ih,  sus- 
pects h,  tous  les  autres.  Vous  ne  faites  rien  qui  ne  paroisse  fait  pour  vos 
voisins  aussi  bien  que  pour  vos  peuples.  Vous  vous  fortifiez  tous  les 
jours ;  et  si  vous  parvenez,  comme  cela  est  presque  infaillible  a  la  longue, 
par  un  sage  gouvernement,  a  avoir  plus  de  forces  interieures  et  plus 
d'alliances  au  dehors,  que  la  puissance  jalouse  de  la  votre,  alors  il  faut 
&'affermir  de  plus  en  plus  dans  cette  sage  moderation  qui  vous  borne  a 


APPENDIX    XI.  381 

entretenir  1'equilibre  et  la  surete  commune.  II  faut  toujours  se  souvenir 
des  maux  que  coutent  au  dedans  et  au  dehors  de  son  Etat  les  grandes 
conquetes ;  qu'elles  sont  sans  fruit;  et  du  risque  qu'il  y  a  &,  les  entre- 
prendre  -}  enfin,  de  la  vanite,  de  1'inutilite",  du  peu  de  duree  des  grands 
empires,  et  des  ravages  qu'ils  causent  en  tombant. 

Mais,  comme  il  n'est  pas  permis  d'esperer  qu'une  puissance  superieure 
h,  toutes  les  autres  demeure  long-temps  sans  abuser  de  cette  superiorite, 
un  prince  bien  sage  et  bien  juste  ne  doit  jamais  souhaiter  de  laisser  k 
ses  successeurs,  qui  seront,  selon  toutes  les  apparences,  moins  moderns 
que  lui,  cette  continuelle  et  violente  tentation  d'une  superiorite  trop  de- 
claree.  Pour  le  bien  meme  de  ses  successeurs  et  de  ses  peuples,  il  doit 
se  borner  a  une  espece  d'egalite.  II  est  vrai  qu'il  y  a  deux  sortes  de 
superiorites;  1'une  exterieure,  qui  consiste  en  etendue  de  terres,  en  places 
fortifiees,  en  passages  pour  entrer  dans  les  terres  de  ses  voisins,  etc. 
Celle-lii  ne  fait  que  causer  des  tentations  aussi  funestes  &  soimeme  qu'a 
ses  voisins,  qu'exciter  la  haine,  la  jalousie  et  les  ligues.  *L'autre  _.,,-„_-. 
est  interieure  et  solide  :  elle  consiste  dans  un  peuple  plus  nom-  ' 
breux,  mieux  discipline,  plus  applique  &  la  culture  des  terres  et  aux  arts 
necessaires.  Cette  superiorite,  <T ordinaire,  est  facile  a  acquerir,  sure,  a 
1'abri  de  1'envie  et  des  ligues,  plus  propre  meme,  que  les  conquetes  et 
que  les  places,  a  rendre  un  peuple  invincible.  On  ne  sauroit  done  trop 
chercher  cette  seconde  superiorite,  ni  trop  eviter  la  premiere,  qui  n'a 
qu'un  faux  eclat." 

(Extract  from  "  The  Times"  Monday,  April  IQth,  1854.) 

The  following  is  the  text  of  the  convention  concluded  between  Eng- 
land, France,  and  the  Porte,  signed  March  13th,  1854 : — 

"  As  Her  Majesty  the  Queen  of  Great  Britain  and  Ireland,  and  His 
Majesty  the  Emperor  of  the  French,  have  been  requested  by  His  High- 
ness the  Sultan  to  assist  him  in  repelling  the  attack  which  has  been  made 
by  His  Majesty  the  Emperor  of  All  the  Russias  on  the  territory  of  the 
Sublime  Porte— an  attack  by  which  the  integrity  of  the  Ottoman  Empire 
and  the  independence  of  the  Sultan's  throne  are  endangered — and  as 
Their  Majesties  are  perfectly  convinced  that  the  existence  of  the  Ottoman 
Empire  in  its  present  extent,  is  of  essential  importance  to  the  balance  of 
power  among  the  States  of  Europe,  and  as  they  have  in  consequence 
agreed  to  afford  His  Highness  the  Sultan  the  assistance  which  he  has  re- 
quested to  this  end, — their  aforesaid  Majesties  and  His  Highness  the 
Sultan  have  deemed  it  proper  to  conclude  a  Treaty,  so  as  to  attest  their 
intentions  in  conformity  with  the  above,  and  to  settle  the  manner  in 
which  their  aforesaid  Majesties  shall  lend  their  assistance  to  His  High- 
ness. 

"  To  this  end  their  aforesaid  Majesties  and  His  Highness  the  Sultan 
have  nominated  as  their  Plenipotentaries  [here  follow  the  names  of  the 
English  and  French  Ambassadors,  and  the  Turkish  Minister  for  Foreign 
Affairs,  who,  after  duly  exhibiting  their  powers  and  authorities,  which 
were  found  in  due  form,  have  agreed  to  the  following  articles  : — ] 

"  '  Article  1. — Her  Majesty  the  Queen  of  Great  Britain  and  Ireland, 


382  PHILLIMORE     ON     INTERNATIONAL    LAW. 

and  His  Majesty  the  Emperor  of  the  French,  after  having,  at  the  request 
of  His  Highness  the  Sultan,  ordered  strong  detachments  of  their  naval 
forces  to  repair  to  Constantinople  to  afford  to  the  territory  and  the  flag 
of  the  Sublime  Ottoman  Porte  such  protection  as  the  circumstances 
should  admit  of,  undertake,  in  the  present  Treaty,  to  co-operate  to  a  still 
greater  extent  with  His  Highness  the  Sultan  for  the  protection  of  the 
Ottoman  territory  in  Europe  and  Asia  against  the  attack  of  Russia,  by 
the  employment  of  such  an  amount  of  their  land  troops  as  shall  appear 
necessary  to  the  attainment  of  their  end.  Their  aforesaid  Majesties  will, 
at  an  early  date,  send  these  land  troops  to  any  such  point  or  points  of  the 
Ottoman  *territory  as  shall  appear  suitable,  and  His  Highness 
the  Sultan  undertakes  that  the  British  and  French  land  troops 
that  may  thus  be  sent  for  the  protection  of  the  Ottoman  territory,  shall 
meet  with  the  same  friendly  reception  and  be  treated  with  the  same  con- 
sideration as  the  British  and  French  naval  forces  which  for  some  time 
past  have  been  employed  in  the  Turkish  waters. 

"  <  Article  2. — The  high  contracting  parties  bind  themselves  each  and 
every  to  communicate  to  each  other,  without  loss  of  time,  every  and  any 
proposition  which  either  of  them  may  receive,  directly  or  indirectly,  from 
the  Emperor  of  Russia  with  reference  to  a  cessation  of  hostilities,  a  truce, 
or  a  peace;  and  His  Highness  the  Sultan  binds  himself  further  to  con- 
clude no  truce  and  to  enter  on  no  negotiations  for  peace  (a  n'entamer 
aucune  tiigociation  pour  la  paix\,  nor  to  settle  any  preliminaries  of  peace 
with  the  Emperor  of  Russia,  without  the  knowledge  and  consent  of  the 
other  high  contracting  parties. 

"  'Article  3. — As  soon  as  the  object  of  the  present  Treaty  shall  have 
been  attained  by  the  conclusion  of  a  treaty  of  peace,  Her  Majesty  the 
Queen  of  Great  Britain  and  Ireland,  and  His  Majesty  the  Emperor  of 
the  French,  shall  immediately  take  measures  to  withdraw  their  military 
and  naval  forces  which  shall  have  been  employed  for  the  purpose  of  at- 
taining the  object  of  the  present  treaty,  and  all  the  fortresses  or  positions 
on  Ottoman  territory  which  shall  have  been  temporarily  occupied  by  the 
forces  of  England  and  France  shall  be  delivered  back  to  the  authorities 
of  the  Sublime  Ottoman  Porte  in  the  space  of  —  days,  dating  from  the 
exchange  of  the  ratification  of  the  Treaty  by  which  the  present  war  shall 
have  been  ended. 

"  '  Article  4. — The  present  Treaty  shall  be  ratified  and  the  ratifications 
exchanged  as  soon  as  possible  within  a  period  of  —  weeks,  counted  from 
the  date  of  signing.'  .  .  ." 

The  Treaty  is  so  drawn  up  and  concluded  that  the  accession  of  other 
Powers  that  may  also  take  part  in  the  stipulated  co-operation  can  easily 
be  effected.  The  reforms  to  be  introduced  into  the  internal  administra- 
tion of  Turkey  are  not  mentioned  in  the  Treaty,  but  form  the  subject  of 
a  separate  protocol. 


INDEX. 


The  pages  referred  to  are  those  between  brackets  [  ]. 


A. 

Abdication,  Act  of  the  Emperor  Fran- 
cis in  1806,  122. 

Accessions,  Fluvial,  255. 

Ackermann,  Treaty  of,  114. 

Acquisition,  Eight  of,  237 — 244  Orig- 
inal, 245.  Original  and  derivative, 
241.  Derivative,  282. 

Act,  Federal,  of  1815,  125. 

Admiralty,  High  Court  of,  20.  Seal 
of,  56.  213.  Jurisdiction  of,  358, 
377.  Account  of,  389. 

Adrinople,  Treaty  of,  113.  117. 

Advocationes  Hispanicae.  See  Alberi- 
cus  Gentilis. 

.ZEschines,  50.  (s). 

Africa,  Mahometan  States  in,  20. 

Aguesseau,  D',  1.  (a),  73.  (c),  74.  (g). 
151. 

Ahrens,  Philosophie  du  Droit,  304.  (i), 
433.  (a). 

Aix-la-Chapelle,  Congress  of,  309. 

Albericus.     See  Gentilis. 

Algiers,  half  destroyed,  Christian  Sla- 
very abolished,  320.  Taken  by  the 
French  in  1830,  with  Tunis  and  Trip- 
oli, concluded  a  Treaty  with  France 
for  the  Abolition  of  Christian  Slavery, 
320. 

Aliens,  British  Acts  relating  to,  233. 
(r). 

Ambassadors,  10.  21. 

America,  Central  and  South,  Republics 
of,  144,  145. 

Amphictyonic  League,  17. 

Ancillon,  447.  (c). 

Andorra,  100. 

Annuaire  des  Deux  Mondes,  144  (r), 
258.  (<).  464.  (TO  op),  465.  (r  s). 

Annuaire  Historique,  90.  (6),  133.  («), 
137.  («). 


Annual  Register.     See  Register. 
Aristotle,  9.  (z\  14.  (6),  15.  (/),  16. 

(h.l.m),  29.  (6),  76.  (e). 
Attorneys-General  of  the  United  States, 

Opinions  of,  143.  (q),  372.  (k),  414. 

(tj. 

Austregal  Tribunal,  125. 
Authors  referred  to  in  this  Work.     See 

Alphabetical  List  of. 
Ayala,  59. 

B. 

Bacon,  Lord,  12.  433.  482,  483. 

Balta  Liman,  Treaty  of,  113. 

Barbary  States,  107. 

Bareyrac,  11.  (a),  188.  (*),  313.  (e), 
314.  (g). 

Barbosa,  24. 

Bartolus,  24.  (Z),  357.  (i). 

Belgium,  100 — 105.  158.  Adjustment 
of  Relations  with  Holland,  273.  442. 
457 — 459. 

Blackstone,  73.  (d),  223.  (q),  269.  345. 
(c),  359.  (TO). 

Blount,  on  Sense  of  Word  "  Pirata,"  in 
his  Law  Dictionary,  387. 

Blume,  Deutsches  Privatrecht,  2.  (c). 

Bodinus,  De  Republica,  344. 

Bolingbroke,  Lord,  Letters  of,  473. 
Works,  482. 

Bond  v.  Hopkins,  36.  (*). 

Borcaut,  Jean,  Case  of,  341. 

Bothwell,  Extradition  of,  412. 

Bowyer,  Readings,  36.  (t). 

Bremen,  99. 

Brougham,  Lord,  426.  (u). 

Bucharest,  Treaty  of,  114.  176. 

Burke,Speech  on  Impeachment  of  War- 
ren Hastings,  23.  (k.)  Treatise  on 
Popery  Laws,  26.  (q),  283.  Letters 
on  a  Regicide  Peace,  32.  (I),  33.  (o), 


384 


PHILLIMORE    ON    INTERNATIONAL    LAW. 


44.  (d),  46.  (k).  Speech  on  America, 
108.  Thoughts  on  French  Revolu- 
tion, 26.  (q),  149.  (e).  Reform  of 
Representation,  150.  (7i),  278.  (e}. 
Speech  on  E.  I.  Company,  254.  (TO). 
On  the  Doctrine  of  Prescription,  278. 
Appeal  from  the  New  to  Old  Whigs, 
282,  283.  439. 

Burlamaqui,  133.  (x),  231.  410.  (/). 

Butler,  Bishop,  73.  (c). 

By nkershoek,  Quaestiones  Juris  Publici, 
30,  31.  35.  37,  38.  (d},  39.  42.  (r.s), 
44.  (e),  45.  80.  154.  (z),  186.  393.  (Z), 
451.  (p),  455.  (6).  De  Piratica,  379. 
(a).  Navis  praedatoria,  393.  (i).  De 
Domino  Maris,  197,  198,  199.  210. 
215.  (o),  241.  247.  (6),  259.  (x),  273. 
(t),  311.  (?),  317.  365.  (u.v).  De 
Foro  Leg.  369.  (/),  370. 


C. 


Cabinet    of   Scarce    and    Celebrated 

Tracts,  14.  (d). 
Calais,  Pas  de,  195. 
Camden,  187. 
Canning,  Mr.,  228.  (/),  233.  (r),  446, 

447.  452. 
Cannon  Law  (Passages  referred  to : 

Page  of  vol. 

Clement.  1.  ii.  t.  xi.    24. 

Decret.  Prima  Pars,  dist.  i.  c.  ix    24. 

"  "  159. 

"  Tom.vi.l.ii.t.  13.C.I.269. 

X.     1.  v- 1.  40.  c.  26.  de  V.  S.  268. 

Capellen,   Vice-Admiral,    assist  Lord 

Exmouth  at  the  Bombardment  of 

Algiers,  320. 
Capua,  7. 

Caroline,  The,  228. 
Cases  referred  to  in  this  Work.     See 

Alphabetical  List  of. 
Chambers,  the  King's,  213. 
Charleston,  Judge   of  Vice-Admiralty 

Court  at,  lays  down  the  Law  as  to 

Piracy,  386. 
Charlemagne,  76.  450. 
Charles  I.,  195. 

Charles  II.  of  Spain,  his  Will,  300. 
Charles  II.  of  England   (the  King  v. 

Hutchinson),  411,  412. 
Charles  V.,  76.  450. 
Charles  VIII.  of  France,  449. 
China,   Emperor   of,    212.      Concedes 

Jurisdiction  to  England  over  British 

Subjects  in  China,  363. 
Christianity,  Influence  of,  on  Interna- 
t  tional  Law,  22,  23,  24.  39.  317,  318. 
Cicero,  5.  (m),  12.  (c).   De  Rep.  16.  (k), 


18,   19.  26.  (»),  78.   152.  155.  (6). 
De  Fin.  241.  (m).   De  Off.  241.  491. 


De  Rep.  246.  (x).  De  Lege  Agrar* 
304.  (*).  De  Off.  313.  (6).  Orat.  pro 
Balbo,  347.  (1).  348.  (q).  De  Off.  379. 
447.  Orat.  pro  Ca3cina,  63.  492. 
Orat.  pro  Lege  Manil.  489. 

Clarendon,  Earl  of,  Speech  of,  in  1853. 
on  Relations  between  the  Porte  and 
Montenegro,  87.  (g) 

Clarendon,  Lord  Chancellor,  Account 
of  the  Privateers  of  Ostend,  79.  (p). 

Clement.     See  Canon  Law. 

Code,  Civil  Frangais  (De  la  Privation 
des  Droits  Civil),  351.  (?/).  D'lnslruc- 
tion  Criminelle,  357.  (h). 

Codex.     See  Roman  Law. 

Codling,  William,  Trial  of,  389. 

Coke,  Lord,  81.  (a;) 

Coke's  Institutes,  411.  (I) 

Collegium  Fecialium,  17. 

Colquhoun's  Civil  Law.  History  of  the 
British  Slave  Trade,  323.  (M),  347. 
(h}. 

Comity,  11.  160,  161.  Held  to  be  suffi- 
ciently stringent  to  compel  the  Sur- 
render of  the  Criminal,  411. 

Commentators  on  International  Law, 
their  Authority,  58. 

Commorant  Strangers,  348. 

Companies,  British  and  Russian  Fur, 
260. 

Company,  E.  I.  British,  not  a  State, 
145.  E.  I.  C.  v.  Campbell,  412.  (o). 

Confederation,  German,  122. 125 — 132. 

Conquest,  300. 

Consolato  del  Mare,  51. 

Constantinople,  Treaty  of,  82. 

Consuls,  10. 

Contiguity,  Doctrine  of  255. 

Convention  of  July,  1840,  117.  Sepa- 
rate Act  of.  118.  At  St.  Petersburg 
respecting  Navigation  of  the  Pacific, 
192.  Fisheries,  207.  Secret,  between 
Versailles  and  Madrid,  of  30th  No- 
vember, 1831,  377. 

Copenhagen,  Court  of  Admiralty  of. 
205,  206. 

Correspondence  with  the  Russian  Go- 
vernment respecting  Obstruction  to 
the  Navigation  of  the  Sulina  Channel 
of  the  Danube,  177.  Between  Con- 
tinental Powers  and  Great  Britain 
respecting  foreign  Refugees,  355. (d). 
See  State  Papers. 

Cowel,  Dr.,  on  Sense  of  Word  "Pirata," 
in  his  Interpreter,  387. 

Cranch,  American  Reports,  158.  (m), 
211.  (e). 

Creole,  The  Case  of,  335.  337,  338,  339. 
343.  414.  (t) 

Cuba,  Correspondence  relating  to,  144. 
(2),  465,  466. 


INDEX. 


385 


D. 


Dahlman,  Geschichte  von  Danemark, 

295. 

Dallas,  353. 
Dante,  301. 
Danube,  176,  177. 
Davis,  Sir  John,  69. 
Davis's  Straits,  204.  207. 
Decretals,  159.  (a).     See  Canon  Law. 
Demosthenes,  12.  187.  448. 
Denisart,    Decisions    Nouvelles,   342. 

(a). 
Denison's  Crown  Cases  Reserved,  333. 

to),  334.  to)- 

Denmark,  193.  201.  203.  20£.  412.  For 
Intervention  in  Affairs  of,  see  Chap, 
on  Intervention. 

De  Rayneval,  Inst.  du  Droit  de  la  Na- 
ture et  des  Gens,  309.  (i}. 

Dereliction,  279. 

Deserters,  Recovery  of  foreign  in  Bri- 
tish Ports,  and  of  British  in  foreign 
Ports,  377. 

Deuteronomy,  chap.  xxii.  v.  1,  2,  313. 
(z). 

Digest.     See  Roman  Law. 

Divorce.     See  Fergusson. 

Dodson's  Adm.  Rep.  38.  (e}.  See  Re- 
ports. 

Dohm,  437.  (i). 

Domat,  1.  (a),  9.  (a).  304.  (h). 

Dominion,  239.     Extinction  of,  307. 

Duck,  Arthur,  59. 

Dumont,  C.  Dipl.  302.  (b). 

Duvergier,  Collection  de  M.,  420.  (q). 


E. 


Echelles  du  Levant,  362. 

Eden's  Chancery  Reports,  336.  (u}. 

Egan,  Charles,  408.  (c),  430.  (I). 

Egypt,  its  Status,  117. 

Election,  sometimes  an  indirect  Mode 
of  acquiring  Territory,  295. 

Elizabeth,  Queen,  187.  (o),  195.  202. 
412.  443.  450. 

Ellenborough,  Lord,  417. 

Elliot's  American  Diplomatic  Code, 
144.  (r). 

Emerigon,  67. 

Erbreich,  296. 

Euripides,  17.  (q). 

Everett,  Mr.,  Letter  about  Slave  Trade, 
324. 

Exchange  of  Territories,  290. 

Exchange,  Case  of  The,  367.  372.  (i). 

Exmouth,  Lord,  ordered  to  procure  a 
general  Abolition  of  Christian  Sla- 
very in  Barbary,  bombards  Algiers, 
319. 


Extradition,  Law  and  Obligation  of, 

407. 
Circumstances   occurring  in   Cases 

of,  413. 
List  of   Treaties    relating  thereto, 

407—432. 

F. 

Faelix,  346.  (h),  350.  (s),  351.  (u.  x}, 
352.  (z),  377.  (z),  411.  (1),  413.  (r), 
418.  (b),  420.  (p),  421.  (&./),  422, 
(i.  k.  n.  o),  423,  (q.  v.  x),  424,  (b.  d), 
425,  (r),  426.  (*.<). 

Farrinacius,  35.  383.  (i). 

Fenelon,  447.  (c),  and  Appendix. 

Fergusson  on  Divorce,  336.  (wj. 

Ferrand,  437.  (i). 

Ferreira,  Pinheiro,  5. 

Feuerbach,  Lehrbuch,  356.  (/). 

Fisheries,  203—210. 

Flassan,  437.  (i). 

Fleury,  470.  (t). 

Foreigner,  Right  of  Jurisdiction  over, 
355—360. 

Forsattning,  the  Swedish  Vessel,  375. 

Foster,  21.  (/). 

Francis  I.,  450. 

Frankfort-on-the-Maine,  100. 

Frankfort,  Diet  at,  1832,  130. 


G. 

Gail,  35. 

Galliani,  xiv.  (Praef.) 

Garden,  De,  Traite  de  Diplomatic,  166. 

Id),  196.  (ck  216,  (q),  310.  (I),  447. 

(c). 
Gazette,  The  Shipping  and  Mercantile 

(of  July  27th,  1853),  393. 
Gazeteer  of  the  World,  99.  (x). 
Genoa,  Delivery  of,  to  Sardinia,  286. 
Gentilis,  Albericus,  31  (j).  43.  (a),  59. 

80.  (0,  81.  (x),  186.  (n),  195.  235.  (a). 
Gentz,  Von,  437.  (i),  440.  447.  (c),  454, 

(y),  455.  (a). 
Gibbon,  76.  (c),  470. 
Globe,  The  (Newspaper),  466. 
Godolphin,  Admir.  Jurisdiction,  387. 

(•)-• 

Gothofred,  Jac.,  de  famosis  Latronibus 
investigandis,  384.  (k). 

Grant,  Sir  William,  70. 

Greece,  17.  Intervention  in  Affairs 
Of;  442,  444 — 447. 

Greeks,  16.  Constitution  and  Terri- 
tory, 105. 

Greenland,  204.  206. 

Grenville,  Lord,  45.  Speech  upon  the 
Motion  for  an  Address  to  the  Throne 
approving  of  the  Convention  with 


386 


PHILLIMORE    ON    INTERNATIONAL    LAW. 


Russia  in   1801 — 190.     Answer  to 
M.    Chauvelin,    226.     Dismissal   of 
M.  Chauvelin,  234.  Debate  on  Block- 
ade of  Norway,  284.  (Jt),  436.  (/). 
Grotius,  de  Jure  Belli  et  Pacis. 
(Prolegomena.) 

Sect.    1  page  of  this  Vol.      37. 

"    17        "        "  1. 3. 7. 

"    18         "        "  456. 

"    19—25          "  i.  (Pref.) 

"    23         "        «  1.  3.  58. 

"    25         "         "  12. 

"    32         "        "  9. 

"    40         "        "  30. 

"    41         "         «  160. 

"    46         '•         "  43. 

Lib.     I.  c.  i.  1.  13. 

"        I.  c.  i.  14.  78. 

"        I.  c.  iii.  6.  77. 

"        I.  c.  iii.  7.  78. 

"        I.  c.  iii.  7.  s.  2.  91. 

"        I.  c.  iii.  21.  ss.  10, 11.   89.92. 

"        I.  c.  iii.  21.  a.  3.  91. 

"        I.  c.  iii.  21,  22.  92. 

"       II.  c.  i.  22.  491. 

"      II.  c.  ii.  2.  s.  5.  245. 

"      II.  c.  ii.  5.  235.  355. 

"       II.  c.  ii.  11.  168. 

"       II.  c.  ii.  12.  168. 

"      II.  c.  ii.  12.  14.  167.  175. 

II.  c.  ii.  13.  s.  5.  235. 

"      II.  c.  ii.  14.  ss.  1,  2.  175. 

"       II.  c.  iii.  6.  26. 

"      II.  c.  iii.  7.  12.  167. 

"       II.  c.  iii.  8.  212. 

"       II.  c.  iii.  10.  s.  3.  321. 

II.  c.  iii.  13.  s.  2.  201.215. 

II.  c.  iii.  15.  187. 

II.  c.  iii.  16,  17.  258. 

"       II.  c.  iv.  265.  273. 

II.  c.  iv.  1.  276. 

II.  c.  iv.  5.  a.  2.  272. 

II.  c.  iv.  4.  308. 

II.  c.  iv.  7.  307.  309. 

II.  c.  v.  24.  s.  1.  38.  345. 

II.  c.  v.  24.  s.  2.  29. 

II.  c.  vi.  283. 

II.  c.  vi.  6.  28. 

II.  c.  vii.  3.  298. 

II.  c.  viii.  36.  245.  247. 

II.  c.  viii.  26.  3. 

II.  c.  ix.  298.  307. 

II.  c.  ix.  3.  s.  1.  148. 

II.  c.  ix.  8.  76.  153. 

II.  c.  ix.  9.  89. 

II.  c.  ix.  10.  158. 

"      II.  c.  ix.  11.  241. 

II.  c.  x.  76.  311.  313. 

II.  c.  x.  1.  s.  5.  312. 

II.  c.  x.  2.  s.  1.  344. 

"       II.  c.  xi.  5.  s.  2.  355. 


Lib.    II.  c.  xiii.  15.  379. 

"      II.  c.  xiv.  71. 

«       II.  c.  xiv.  11.  s.  2.  151. 

"       II.  c.  xv.  5.  s.  1.  317. 

"       II.  c.  xv.  7.  s.  1.  91 

"      II.  c.  xv.  8—12.  81. 

"       II.  c.  xvi.  16.  153.  288. 

"       II.  c.  xvii.  69. 

"       II.  c.  xvii.  19.  321. 

"      II.  c.  xvii.  19—29.  379. 

"       II.  c.  xvii.  20.  379. 

"       II.  c.  xviii.  4.  s.  2.  20. 

"      II.  c.  xviii.  2.  77. 

"      II.  c.  xviii.  4.  s.  5.  39. 

"       II.  c.  xviii.  7.  s.  1.  44. 

"      II.  c.  xviii.  1,  2,  3.  379. 

"      II.  c.  xx.  28.  7. 

"       II.  c.  xx.  40.  8.  442. 

"       II.  c.  xxi.  231. 

"      II.  c.  xxi.  5.  379. 

"       II.  c.  xxi.  3,  4,  5.  409. 

"      II.  c.  xxii.  16.  161. 

"       II.  c.  xxv.  8.  345. 

"     III.  c.  i.  1  321. 

"     III.  c.  ii.  1.  321. 

"     III.  c.  ii.  2.  s.  2.  322. 

"     III.  c.  iii.  1,  2,  3.      79,  80.  379. 

"     III.  c.  iv.  10.  s.  2.  321. 

"     III.  c.  iv.  15.  321. 

"     III.  c.  iv.  19.  318.  321. 

"     III.  c.  v.  2.  27. 

"     III.  c.  vi.  3.  39. 

"     III.  c.  vii.  5.  s.  2.  39. 

"     III.  c.  vii.  9.  27.  39.  318. 

"     III.  c.  ix.  311,312. 

"     III.  c.  ix.  1,  4.  s.  2.  34. 

"     III.  c.  ix.  9.  307. 

"     III.  c.  ix.  16.  379.  388. 

"     XI.  c.  viii.  2.  2. 

Mare  Liberum,  186.  195. 

Epistolae,  Ep.  546,  p.  920.,  xii. 

(Prsef.) 
Guizot,  De  la  Democratic  en  France, 

156.  (e}. 

Gulhane,  Hatti  Sheriff  of,  117. 
Gunther,  164.  (a),  186.  (n),  210.  (a), 
212.  245.  (M),  250.  258.  (t),  283.  (e), 
290.  (y),  292,  (/),  293.  (h.  k),  295, 
(o),  296,  (r),  297.  (i!.  M),  302,  (a.  6), 
303.  307.  (a),  314.  345,  (6),  346,  (/), 
347,  (h.  m\  348.  (p),  351.  (v),  366, 
(x),  434.  (d),  447,  (c). 

H. 

Haggard's  Admiralty  Reports,  335.  (s). 
Hale,  Pleas  of  the  Crown,  233.  (q). 
Hambourg,  99. 
Hannibal,  7. 

Hansard's  Parliamentary  Debates,  414. 
(t),  416.  (x},  457.  (d). 


INDEX. 


387 


Hanseatic  League,  99.     Towns,  204. 

Heath,  Mr.  Justice,  412. 

Hedges,  Sir  Charles,  Judge  of  the 
High  Court  of  Admiralty  in  1696, 
Charge  on  Trial  of  Joseph  Dawsou, 
385,  386. 

Heffters,  89.  (a),  94.  (n),  145,  (t),  146. 
(*),  157.  (i),  165.  (a),  189.  (r),  210. 
(a),  215.  (o),  217.  277.  (d),  282.  (a), 
302,  (a),  303.  307.  (a),  314. 346, 347. 
(a),  360.  365.  (*.  t.  v),  366.  411.  (I), 
413.  (r),  434.  (d). 

Heineccius,  23.  (k),  34.  (g),  230.  283. 
(i),  308.  312.  (y). 

Henry  VII.,  Patent  to  John  Cabot, 
262. 

Heredotus,  3.61.  (b). 

Hertius,  xv.  (Praef.) 

Hertslet's  Treaties,  86.  96.  (r),  99,  (* 
100.  (y),  105.  (6),   119.  (z),   144.  (r 
173.  (t),  232.  (o),  258.  (t),   324,  (a 
362.  (g).     For  Treaties  on  Extradi- 
tion. 

Hindostan,  35.  (s). 

Hobbes,  2.  (b). 

Holland,  205,  206. 

Holstein,  Duchy  of.     See  Schleswig. 

Homan,  de  Delictis  Peregrinorum,  &c., 
355.  (d). 

Homer,  79. 

Honduras,  British  Settlement  in,  223. 

Hooker,  2.  (d),  3.  (g),  4—19,  (a),  150. 

HowelFs  State  Trials,  the  Negro  Case, 
337,  385,  (m),  386,  (n.  o.  p.  g),  389, 
(a).  Case  of  Napper  Tandy,  413.  (g), 
417.  (y.z). 

Hubertsburg  and  Paris,  Peace  of,  181. 

Huberus,  de  Cbnflictu  Legum,  35.  355. 

Hume's  History,  197.     Essays,  449. 

Hyder  Ali,  23.  (k). 


I. 

Iceland,  204. 

India,  23. 

Injunction,  433. 

Institutes.     See  Roman  Law. 

International  Jurisprudence  in  Eng- 
land, Hist,  of,  Praef.  xv.  to  end. 

Intervention  justified  on  the  ground  of 
Self-Preservation,  285.  Chapter 
upon  the  Doctrine  of,  433. 

Interdict,  433. 

Inviolability,  Territorial,  165. 

Isocrates,  Orat.  Archidam.  271.  (q). 

J. 

James  I.  succeeds  to  the  Throne,  partly 
by  the  Nomination  of  Elizabeth,  and 
partly  by  Right  of  Descent,  299. 


James  II.,  Power  after  Abdication  of 
commissioning  Privateers  denied, 
398—406. 

Jenkins,  Sir  Leoline,  81.  («),  196.  198. 
213.  Letter  to  Sir  William  Temple 
on  Naturalization,  349.  362.  (c). 
Law  relating  to  Piracy;  Letter  to  Mr. 
Secretary  Williamson,  380.  Charge 
within  the  Cinque  Ports  relating  to 
ditto,  381 ;  at  Old  Bailey,  ditto,  383. 
394.  407.  (a). 

Jenkinson,  Mr.,  afterwards  Lord  Liver- 
pool, 20.  (6). 

Johnson,  Dr.,  Thoughts  on  Transac- 
tions relating  the  Falkland  Isles, 
262.  (d),  263.  (h). 

Johnson's  American  Reports,  158.  (m). 

Jurisdiction,  Territorial,  over  Persons, 
either  Subjects  or  Foreigners,  354 — 
360.  Civil,  over  Foreigners,  See 
Comity.  Exceptions  to  the  Terri- 
torial Right  of,  361—378.  Right 
of,  379. 

Jurist,  391.  (/). 

Jus  Feciale,  17.  Jus  Gentium  and  Jus 
Civile,  240. 

Justice,  Principles  of  International, 
when  binding,  23. 

Justinian,  240.  266. 

K. 

Kaine,  Case  of,  430. 

Kaltenborn,  Volkerrcht,  5.  (m),  9.  (a), 

73.  (6),  74.  (g),  104.  (a). 
Kant,  72.  (a). 
Kent,  Mr.  Chancellor,  54.  60.  (g),  155. 

158.  (1),  210.  (a),  213.  353.     Comrn. 

377.  (*),  379.  (a),  381.  (e),  407.  (a), 


408.  (c),  410.  (t),  411.  435.  (e). 
Kenyon,  Lord,  417. 
Klinkhammer,  447.  (c). 
Kluber,  39.  (*),  89.  (a),  94.  (g),  146.  (u), 

210.  6),  235.  (a),  247.  (z)  258.  ft), 

302.  a),  303.  (d},  306.  (t),  355.  («), 

366. 

422. 

Kluit,  408.  (c)  411.  (k,  I). 
Koch,  47.  (m),  48.  (n),  107.  (d),  112. 

'»),  134.  (a),  172.  (p),  207.  (I),  284. 
'k),  291.  (a.  6),  292,  293,  294.  (n), 

306.  (p),  309.  (k),  310.  (m),  323.  (it) 

437.  (t),  449.  (i),  450.  (m.  n),  452.  (g), 


y),  376.  (x),  393.  (k),  413.  (r), 


453.  (»),  461.  (g). 

L. 

Lamartine,  M.  de,  152.  437. 
Lamberty,  Memoires,  x.  (Praef.) 
Lampredi,  xiv.  (Praef.) 
Lapse  of  Time,  effect  of,  272. 


388 


PHILLIMORE    ON     INTERNATIONAL    LAW. 


Law,  International,  Private  and  public 
distinguished,  2,  3.  10,  11,  12,  13. 

Legal  Means  of  two  Kinds,  via  arnica- 
bili,  viafaeti,  12.  Of  War,  13. 

Leibnitz,  33. 

Limburg,  Duchy  of,  133. 

Livy,  7.  (?),  9.  Q,),  1M»),  18- 

Loccennius,  35.     De  Jure  Marit.  375. 

(«)• 

Lorenzo  el  Eeal,  Treaty  of,  170. 
Louis  XIV.,  197. 
Louis,  The,  38. 
Louisiana,  293. 
Lubeck,  99.  204. 
Lucan,  490. 

Lushington,  Dr.,  391,  392. 
Luxemburg,  Duchy  of,  133. 
Lyndhurst,  Lord,  415. 

M. 

Mably,  Droit  Public,  51.  (y),  84.  (6), 

107.  (e),  151.  157.  (h),  229.  (g),  279. 

(/),  288.  (2),  308,  309.  (*),  447.  (c), 

456.  (c). 

Mackeldey,  237.  (c),  304.  (h). 
Mackintosh  Sir  James,  28,  62.  Speech 

on  Blockade  of  Norway,  291,  (z),  417. 

437.  443,  444.  447.  (c),  453.  (u). 
Manning,  Law  of  Nations,  434.  (d). 
Mansfield,  Lord,  61. 
Marine  Ordinance,  Effect  of  on  Inter- 

national Law,  50. 
Marque,  Letters  of,  393. 
Marriage,  frequently  a  mode  of  acquir- 

ing Territory,  296,  297. 
Marseilles,  Tribunal   Correctionnel  at, 

375. 
Marshall,  Chief  Justice,  Judgment  of 

(in  Case  of  Antelope),  77.  (y),  375. 
Martens,  De,  and  De  Cussy,  115,  116. 

(r.  *),    124,  (/),   125,  (k),   126.  (Z), 


134.  (2),  169.  (Z),  176.  (a),  193.  (a), 
207.  (TO),  211.  (d),  217.  (r),  319.  (t), 
320.  (k),  323.  (x),  325,  (c),  326.  (/  . 
Traite  des  Noirs,  329,  (g),  330,  (k,  I), 
331.  Traite  entre  Gr.  Bretagne  et 
Perse,  364.  (p),  372.  (k),  417.  (a). 
Martens,  De,  Droit  des  Gens,  94.  (o), 
186.  (ri).  Des  Mers  Adjacentes,  201. 
212.  226.  235.  (a),  251.  407.  408. 
De  1'Extradition  d'un  Criminel,  410. 
414.  447.  (c),  466.  (wl  475.  Traites 
84.  (c),  96.  (r),  99.  (t),  111.  (m),  125, 
(h),  130.  (m),  134.  (z),  176.  (z),  224. 
(e},  245.  (v),  263.  (/i),  283.  (d},  286. 
292.(c),  302.(c),  307.  (a),  355,  (e),  356. 
(/),  418.  (e),  419.  (k.  m).  Nouveau 
Eecueil,  420.  (n),  438.  (k),  457.  467. 
(6),  480.  (g.h.i).  For  Treaties  on  Ex- 
tradition, See  Extradition.  Causes 


Celebres,   173.  (.?),  205.  (f.g),  206, 

(h),  207.  (i),  342.  (z),  414.  (t).  Merk- 

wilrdiger  Falle,  413.  (q). 
Masse,  Le  Droit  Commercial,  235.   Le 

Devoir  des  Etrangers,  355.  (e}}  374. 

(o),  375,  (q),  376. 
Mayence,  Treaty  of,  180. 
Merlin,  Rep.  de  Jurispr.,  15.  (#},  136. 

(&),  365.  (v).      Questions   du  Droit. 

410.  (t). 
Michaelis,     Mosaisches,     Recht.    vii. 

(Pnef.) 
Miltitz,  82.  (z),   99.  (z),   Manuel  des 

Consuls,  361,  (b],  362.  (/),  364.  (p), 

476.  (x). 

Milton,  448.  (/),  454. 
Mirehouse  v.  Rennell,  36.  (t). 
Miruss,  vi.  (Praef.) 
Mississippi,  33,  34.  181. 
Moldavia,  112. 
Molloy,  80. 

Moniteur,  cited,  435.  478.  (e), 
Montenegro,  110. 
Montesquieu,  14.  21. 151. 361.  (6),  468. 

(c). 

Morality,  International,  25. 
Morocco,  22.  (i),  109. 
Moser,  xiv.  (Praef.) 
Miihlenbruck,  237.  (c),  307.  (a). 
Munster,  Peace  of,  170.  250. 

N. 

Nationality,  Change  effected  in,  350. 

Naturalization,  350 — 354.  Laws  of 
France  relating  thereto,  351. 

Netherlands,  United  Provinces  of,  134. 

Neufchatel,  Principalities  of,  136. 

Newfoundland  Fisheries,  207. 

Newton,  The,  Case  of,  374. 

Neyron,  11.  (a). 

Nimeguen,  Treaty  of,  Art.  XIV.,  re- 
ferring to  Exchange  of  Territory,  290. 

Nootka  Sound,  190.  Convention,  192. 
263. 

North  Sea,  193. 

Norway,  Forcible  Annexation  of,  to 
Sweden,  285. 

0. 

Occupation,  259. 

Ompteda  (Von),  Litteratur  der  Vfiker- 
recht,  3.  (j),  277.  (b),  306.  (t),  492. 

Oppenheim,  51.  («),  89.  (a). 

Oregon  Territory,  Maxims  of  America 
upon,  243.  Question,  259.  (z), 

Ortolan,  Eugene,  168.  (j).  Des  Moy- 
ens  d'acquerir  le  Domain  Interna- 
tional, 237.  (a),  259.  (o),  263.  (h.  i), 
265.  (6),  282.  (a),  447.  (c).  Diplo- 
matic de  la  Mer,  58.  (a),  210.  (a), 


INDEX. 


389 


216.  (q),  362.  (e),  366.  (z),  369.  (c), 
372.  (k),  374,  375.  (o.p.  r),  376.  The 
French  Ordonnnace  cited  by,  377. 
Des  Pirates,  379.  (a).  381.  (c),  394. 
(TO),  408.  (c). 
Ottoman  Empire.  See  Turkey. 


P. 


Papers  relative  to  the  Eights  of  Libe- 
rated Africans,  &c.,  354.  (c).  See 
State  Papers. 

Paraguay,  States  of,  186.  River  Pa- 
rana, States  of,  186. 

Pardessus,  51. 

Paris,  Treaty  of,  25.  (o),  1^7.  207.  293, 

294.  In  1814,  323. 
Pascal,  Pensees,  25.  (o). 

Paul  I.,  Emperor  of  Russia,  Libel  upon, 
417. 

Peltier  (Jean),  Case  of,  417. 

Phillimore  (Dr.),  58.  Preface  to  Sir 
G.  Lee's  Reports. 

Phillimore  (R.),  Pamphlet  on  Armed 
Intervention  on  the  ground  of  Reli- 
gion, 113.  (p),  470,  &c.  Letter  to 
Lord  Ashburton,  232.  (TO),  470.  (g). 

Piracy,  Authorities  from  Civil  Law, 
from  Jurists,  from  Statute  and  Com- 
mon Law,  and  Commentators  there- 
on, cited  by  Judge  of  the  Vice- Ad- 
miralty Court,  Charleston,  List  of, 
388.  (x). 

Pirates,  379.  Case  of  Magellan  Pirates, 
390.  401—405. 

Plato,  17.  (p). 

Plutarch,  17,  787. 

Poland,  Condition  of,  under  the  Treaty 
of  Vienna,  89,  90.  Election  of  Duke 
Jagello  and  Acquisition  of  Litthauens 

295.  Maintains   the    Freedom    of 
Slaves,  343.   Partitions  of,  39,  437 — 
441. 

Polybius,  133.  (x}  448,  449. 

Pompey,  18. 

Pope,  the  Grants  of,  245.  260. 268.  Pro- 
testing against  all  Treaties  recognis- 
ing the  Confiscation  of  Church  Pro- 
perty at  or  since  the  Reformation,  309. 

Portalis,  Code  Civ.  356.  (/). 

Porte,  Ottoman,  22.  (i).  Concessions 
by,  to  the  British  Crown,  362.  For 
Intervention  in  the  Affairs  of,  See 
Intervention. 

Portugal :  Portuguese  Rebels,  228. 
Cedes  to  Spain  Annobon  and  Fer- 
nando Po,  292.  Treaties  with  Great 
Britain,  acknowledging  the  Neces- 
sity of  suppressing  the  Slave  Trade, 
325.  For  Intervention  in  Affairs  of, 
See  Intervention. 


Possession,  237.   Three  species  of,  239. 

Postliminium,  Doctrine  of,  273.  311, 
312. 

Pothier,  63,  68. 

Power,  Balance  of.     See  Intervention. 

Prescription,  265 — 281.  Immemorial. 
268.  Abolished  in  France  and  Aus- 
tria in  Private  Law,  270.  Indis- 
pensable in  Public  Law,  270.  Inter- 
national, 271.  List  of  Authors  in 
favour  of  placing  it  in  the  System  of 
International  Law,  273. 

Pretender,  The,  229. 

Privateer,  393.  Law  laid  down  in 
America,  Cases  relating  thereto,  List 
of,  394.  (I).  See  James  II. 

Prize  Courts,  Decisions  of,  their  Effects 
upon  International  Law,  51. 

Proclamations,  Effect  of,  on  Interna- 
tional Law,  50. 

Property,  237.  May  be  taken  by  an 
Act  of  Law,  by  Conquest,  may  be- 
come extinct,  315. 

Prussia,  39.  Acquisition  of  Part  of 
Saxony  by,  300. 

Puchta,  2,  3,  (g),  4.  (I)  18.  (x),  237.  (c) 
394.  (h). 

Puffendorf,  2.  (6),  156.  169.  186.  200. 
Jus  Nat.  et  Gent.  265.  (a).  De  Usu- 
capione,  275.  284.  De  Success,  ab 
Intestate,  298.  313.  410. 

Punishment,  Mistake  respecting  the 
Liability  of  Nations  to,  5. 

Puttlingen  (De),  422. 

Q. 

Queen,  The,  v.  Clinton,  430. 

R. 

Recuperatio,  18. 

Recuperatores,  18. 

Reiffenstuel,  24.  (I) 

Register,  Annual,  21,  (d),  22.  (g), 
131.  (p),  169.  (m),  208,  (n),  209.  (o), 
223,  (6),  224.  (e),  293.  (g),  319.  (h), 
427.  (g),  463. (k),  464.  (I.  n). 

Renvoi,  Right  of,  407. 

Reports.  See  List  of,  at  the  beginning 
of  this  Volume. 

Review,  Foreign  Quarterly,  447.  (c). 

Review,  Edinburgh,  414,  437. 

Revue  Etrangere,  420.  (o),  426.  (*). 

Rhine,  its  free  Navigation,  177. 

Ridley,  View  of  Civil  Law,  387.  («) 

Rights,  3.  International  Public,  10. 
International  Private,  11,  12.  Of 
Neutrals,  12.  Of  Belligerents,  12. 
Of  Independence  and  Equality,  162. 
To  a  free  Choice  of  Government,  194. 

Rivers.     Chap.  V.,  167. 


390 


PHIL  LI  MORE     ON     INTERNATIONAL     LAW. 


Robbing,  Case  of,  429. 

Digest, 

XLIII.  t.  xvii.  2.          238. 

Robinson's   Admiralty   Reports.      See 

u 

XLIII.  t.  xvii.  3.  s.  8.  238. 

Reports. 

u 

XLIII.  t.  xvii.              238. 

Rocco,  Dell'  Uso  delle  Leggi  delle  Due 

i 

XLIII.  t.xx.3.s.4.  266,267. 

Sicilie,  355  (e). 

i 

XLIII.  t.  xxvii.            433. 

Rodenburghius,  xv.  (Praef.) 

t 

XLIII.  t.  xxviii.           433. 

i 

XLVI.  t.  i.                   308. 

Roman  Law.                                  Page. 

t 

XLVI.  t.  i.  22.                 2. 

Digest.     Lib.  1.  1.  i.  2.                   2. 

u 

XLVI.  t.  iii.  12.  s.  4.  242. 

"                   1.  1.  i.  5.                    3. 

tt 

XLVI.  t.  iii.  79.           289. 

"                   1.  1.  i.  9.                    4. 

it 

XLVI.  t.  iv.                 490. 

"                   1.  1.  iii.  12.              36. 

u 

XLVI.  t.  vi.  9.             165. 

"                    I.  t.  iii.  14.              47. 

tt 

XL  VII.  t.  ii.  44.  9.       312. 

"                   I.  t.  iii.  27.              36. 

tt 

XLVII.  t.  ii.  51.              68. 

"                    I.  t.  iii.  32.               36. 

It 

XLVIL  t.  in.                 433. 

"                    I.  t.  iii.  41.             237. 

It 

XLIX.  t.  iv.  7.                92. 

"                    I.  t.  viii.  5.             167. 

It 

XLIX.  t.  xiv.  11.         310. 

"                  II.  t.  i.  20.               361. 

It 

XLIX.  t.  xv.  19.  s.  2. 

"                III.  t.  iv.  1.  ss.  1,  2.       2. 

379.  388. 

"                III.  t.  v.  6.  s.  9.       242. 

tl 

XLIX.  t.  xv.  21.          379. 

"                III.  t.  xxxv.              68. 

It 

XLIX.  t.  xv.  24.          388. 

"                   V.  t.  i.76.  1.148,149. 

It 

L.  t.  xvi.  49.          165. 

«                VII.  t.  i.  56.                 1. 

tl 

L.  t.  xvi.  90.  169.  304. 

"              VIII.  t.  i.  15.             305. 

it 

L.  t.  xvi.  118.       379. 

"              VIII.  t.  iv.  13.           189. 

u 

L.  t.  xvi.  125.       310. 

"                IX.  t.  ii.  23.             68. 

It 

L.  t.  xvii.  17.        490. 

«              XIII.  t.  i.  8.  s.  1.         68. 

It 

L.  t.  xvi.  178.  208. 

"             XIII.  t.  iii.  1.              66. 

222.        165. 

"            XVII.  t.  ii.  23.             31. 

tl 

L.  t.  xvii.  136.      313. 

«          XVIII.  t.  vi.                    67. 

u 

L.  t.  xvii.  153.      307. 

"          XXIII.  t.  iii.  43.  s.  1.  289. 

u 

L.  t.  xvii.  162.        47. 

«           XXIX.  t.  ii.                  308. 
"       XXXIX.  t.  i.  5.  7.          304. 

Codex, 

Lib.  I.  t.  iv.                    59- 

"       XXXIX.  t.  ii.                 433. 

it 

1.  1.  xvii.  2.  18.      36- 

«        XXXIX.  t.  iii.                433. 

tt 

II.  t.  iii.  20.           288- 

"        XXXIX.  t.  iii.  1.  s.  22.  303. 

it 

II.  t.  xxix.                 2. 

"        XXXIX.  t.  iii.  2.    266.  274. 

tt 

III.  t.  xxxiv.           304. 

"        XXXIX.  t.  iii.  24.  26.    267. 
"              XLI.  t.  i.  9.  s.  3.       288. 

it 
it 

IV.  t.  i.  2.                 74. 
IV.  t.  xlviii.             67. 

"               XLI.  t.  i.  20.  s.  1.     289. 

tt 

VII.  t.  xxv.  1.          240. 

"               XLI.  t,  i.  9.  s.  5.       289. 

tt 

VII.  t.  xxxi.            266. 

«               XLI.  t.  i.  31.            289. 

ti 

VII.  t.  xxxiii.           266. 

«              XLI.  t.  i.  7.  29,  30. 

a 

VII.  t.  xxxiv.           266. 

56.  65.        255. 

tt 

VII.  t.  xxxv.             266. 

«               XLI.  t.  ii.  1.  s.  1.      241. 

it 

VII.  t.  xxxviii.         266. 

"               XLI.  t.  ii.  1               238. 

it 

VII.  t.  xxxix.           266. 

«               XLI.  t.  ii.  3.  s.  1.      247. 

it 

VII.  t.  xli.                 255. 

«               XLI.  t.  ii.  8.      240.  307. 

ii 

IX.  t.  iii.                    59. 

"              XLI.  t.  ii.  17.  s.  1.   239. 

tt 

IX.  t.  Ii.  13.              59. 

«               XLI.  t.  ii.  18.  s.  2.    289. 

tt 

X.  t.  xxxii.  46.      282. 

«               XLI.  t.  ii.  18.            238. 

Institutiones,  Lib.  1.  1.  viii.  2.          433. 

«               XLI.  t.  ii.  23.  s.  2.    316. 

it 

I.  t.  xii.  6.           311. 

«               XLI.  t.  ii.  34.            239. 

u 

II.  t.  i.  1,  2.          167. 

«               XLI.  t.  ii.  41.            238. 

u 

II.  t.  i.  1.  5.    34.167. 

"               XLI.  t.  iii.                 266. 

it 

II.  t.  i.  17.            317. 

«               XLI.  t.  iii.  1.            274. 

n 

II.  t,i.  20,21.  255.257. 

«            XLIII.  t.  vii.  3.            266. 

tt 

II.  t.  i.  42.            289. 

"           XLIII.  t.  xii.  1.  s.  7.   255. 

ti 

II.  t.  iii.                304. 

"           XLIII.  t.  xvi.  1.  s.  9.  238. 

it 

II.  t.  vi.         238.  266. 

"            XLIII.  t.  xvi.  1.  s.  14.  242. 

tt 

III.  (de  Legit.  Aguat.)    26. 

"            XLIII.  t.  xvi.  4.               7. 

ti 

IV.  t.  iii.  (de  Lege  Aqui.)  68_ 

INDEX. 


391 


Romans,  Epistle  to  the,  16. 

Rome,  17. 

Rotteck,  Staats-Lexicon,  470. 

Russell  on  Crimes,  359.  (TO),  378.  (6), 
381. 

Russia,  21.  Manifesto  of  Great  Bri- 
tain to,  45.  Claims  Sovereignty  over 
Pacific  Ocean,  215. 

Rutherforth,    147.  (a),    258.  (t),    283. 

410.  m. 

Rymers  Foedera,  193.  204. 
Ryswick,  Peace  of,  in  1697,  314. 


Saalfeld,  413.  (r). 

Sallust,  18.  93.  (t). 

Sally,  The,  Case  of,  374. 

San  Lorenzo  el  Real,  Treaty  of,  182. 

San  Marino,  100. 

Santa  Lucia,  dispute  between  France 
and  England  respecting,  280. 

Savigny,  2,  3.  (/),  5,  («),  6.  (o.  p.), 
25.  (p),  36.  (t),  42.  (r),  150.  237-  (c), 
267,  (h),  268.  (f),  270.  282,  (6),  283. 

304.  (h),  491. 

Saxony,  39.  King  of,  publishes  a  Pro- 
test against  the  Dismemberment  of 
his  Kingdom,  310. 

Scheldt,  closed  to  the  Belgian  Pro- 
vinces, 173. 

Schilling,  Pandekten  Recht,  304.  (h). 

Scblegel,  193.  Staatsrecht  Danemark, 
201. 

Schleswig,  Duchy  of,  132. 

Schmalzgrueber,  24.'  (I),  268.  (t). 

Schmauss,  136.  (c),  249.  (/),  264.  (Z), 
290.  (y),  293.  (i),  302.  (c),  315.  (I) 
473.  (fc),  476.  (z.  a.). 

Scott,  Sir  William,  56. 

Sea,  North,  193.  Narrow,  194.  Por- 
tions of,  210.  Near  the  Coasts,  211. 
Landlocked,  216,  217.  Caspian  and 
Black  Sea,  216.  The  Baltic,  216. 

Search,  Right  of,  324. 

Selden,  Mare  Clausum,  186.  195.  387. 

(r). 

Self-Preservation,  225—235. 
Sell  die  Recuperatio  der  ROmer,  491, 

492,  493,  494. 
Seneca,  19.  (z). 
Servia,  114. 
iServitus,    Doctrine    of,    304.    (as    to 

Places.)  Negative   and   affirmative, 

305.  Exemplified  by  Treaties,  306. 
Shakspere,  Richard  II.,  149.(rf). 
Ships,   Foreign    Ships   of    War,   366. 

Foreign  Ships  of  Commerce,  366. 

Sierra  Leone,  354. 

Slaves  and  Slave  Trade,  316.  Aboli- 
tion of,  as  a  Principle  of  Public  Law, 


formally  adopted  at  the  Congress  of 
Vienna  in  1815,  Aix-la-Chapelle  in 
1818,  Verona  in  1822,  329.  Placed 
in  the  Category  of  Piracy  in  1842, 
330.  Catalogue  of  Treaties  relating 
thereto  between  Great  Britian  and 
other  States,  331.  Report  of  Com- 
mittee of  House  of  Commons  upon 
332.  Illegality  of,  according  to 
Municipal  Law,  335.  English  Cases 
upon,  336—340.  French,  341,  342. 
Polish,  343. 

Smith  (Sir  Thomas),  Commonwealth 
of  England,  318.  (jf. 

Somersett  (The  Negro),  335. 

Sophocles,  Antigone,  16.  (i). 

Sovereigns,  10. 

Spain,  33.  Negociations  with  the 
United  States  respecting  Louisiana, 
252.  Its  Dominions  parcelled  out 
in  1700,  288.  Treaty  with  Great 
Britain  relative  to  the  Continuance 
of  the  Slave  Trade,  324.  For  Quad- 
ruple Alliance  in  1834,  see  Interven- 
tion. 

Spelman  (Sir  Henry)  on  the  Use  of  the 
Word  "  Pirata,"  in  his  Glossarium, 
387. 

State  Papers,  226.  234.  250,  (t),  251. 
(k),  255.  (»). 

States,  Different  Kinds  of,  Chap.  II., 
88.  Feudal,  107.  Under  Federal 
Union,  Chap.  III.,  120.  Retaining 
individually  the  Management  of  their 
external  Relations,  122. 133.  Whose 
external  relations  are  managed  by 
the  Supreme  Federal  Power,  133. 
145.  Extinction  of,  147.  Changes 
in,  148.  Its  Property  capable  of 
being  alienated ;  and  of  being  sub- 
jected to  Obligations  and  Services  in 
favour  of  another  State,  302.  May 
voluntarily  subject  herself  to  the 
same,  303.  Renunciation  of  Terri- 
tory by,  310.  List  of,  forbidden  to 
deliver  up  citizens  to  Foreign 
Powers,  413.  (r) 

Slates,  United,  of  North  America,  33, 
34.  The  greatest  Example  of  Fe- 
deral Government,  138.  Fishing 
Disputes,  207.  Negociations  with 
England  respecting  Oregon  Boun- 
dary, 250.  Claims  upon  Oregon 
Territory,  264.  Negociations  with 
Great  Britain  relating  to  Suppression 
of  Slave  Trade,  325.  Contentions 
with  Ditto  on  Eight  of  Visit,  326. 
Foreign  Enlistment  Act,  398.  Unit- 
ed States  v.  Nash,  Case  of,  429. 

Statutes,  List  of,  relating  to  Offences 
by  British  Subjects  in  foreign  States, 


392 


PHILLIMORE    ON     INTERNATIONAL     LAW. 


358.  On  the  High  Seas,  358.  Out 
of  England,  358.  Foreign  Enlist- 
ment Act,  397. 


STATUTES    REFERRED    TO. 


27  Edw.  III.  c.  13. 
15  Rich.  II.  c.  3. 
28  Hen.  VIII.  c.  15. 


33  Hen.  VIII. 

10  &  11  Will.  III. 

9  Geo.  III. 

33  Geo.  III. 

38  Geo.  III. 

41  Geo.  III. 

42  Geo.  III. 

43  Geo.  III. 
46  Geo.  III. 

54  Geo.  III. 

55  Geo.  III. 

56  Geo.  III. 

58  Geo.  III. 

59  Geo.  III. 
59  Geo.  III. 

1  Geo.  IV. 
3/Geo.  IV. 

5  Geo.  IV. 

6  Geo.  IV. 
9  Geo.  IV. 

2  &  3  Will.  IV. 

3  &  4  Will.  IV. 

4  &  5  Will.  IV. 


c.  23. 
c.  25. 
c.  35. 
c.  4. 

c.  50.  77 
c.  24. 
c.  93. 
c.  155. 
c.  54. 
c.  155, 
c.  54. 
c.  86. 
c.  96. 
c.  69. 
c.  75. 
c.  105. 
c.  97. 
c.  37. 
c.  49. 
c.  31. 
c.  71. 
c.  93. 
c.  36. 


6  &  7  Viet.  c.  75. 
6  &  7  Viet.  c.  76. 

6  &  7  Viet.  c.  80. 

7  &  8  Viet.  c.  2. 

7  &  8  Viet.  c.  66. 

8  &  9  Viet.  c.  120. 
8  &  9  Viet.  c.  122. 

13  &  14  Viet.  c.  26. 
15  Viet.  c.  26. 


388. 

358 
358,  388. 

389. 

358. 

358. 

211. 

233. 

234. 

234. 

234. 

234. 

358. 

234. 

234. 

234. 

234. 
397,  398. 

358. 

234. 

234. 

234. 

391. 

358. 

270. 

363. 
358.  378. 

389. 

427. 

429. 

363. 

38». 

353. 

427. 

329. 
389.  391. 

377. 


Story  (Dr.),  56.  Commentaries  on  the 
Constitution  of  the  United  States, 
138.  158.  Conflict  of  Laws,  344. 
346  (h),  355.  (d),  367.  372.  Judg- 
ment in  United  States  v.  Smith,  380. 
410.  (i).  On  the  Constitution,  430. 

(*)• 

Stowell,  Lord,  14.  20.  22.  32.  38,  39. 
41,  42.  46.  52.  His  Judgments. 
The  Place  they  are  entitled  to  hold 
among  the  Sources  of  International 
Law,  54.  60,  61.  69.  81,  82,  (y),  153. 
160.  (&),  170.  194. 199.  210.  238.  (d), 
244.  321,  322.. 335.  359.  (n).  The 
Printz  Frederick,  370.  Addressing 
Grand  Jury,  on  Jurisdiction  of  the 
Admiralty  of  England,  389.  Trial 
of  William  Codling,  389. 


St.  Ildefonse,  Treaty  concluded  at, 
illustrating  national  Acquisition  by 
Gift,  Sale,  and  Exchange,  294. 

St.  Lawrence,  181,  182. 

Suarez,  24.  (n),  25.  (p),  28.  63.  (m), 
157.  (g],  268.  (i),  317.  vi.  Preef. 

Straits.     Chap.  VII.,  200. 

Subject,  Eight  of  Jurisdiction  over, 
345—348. 

Succession,  a  Means  of  national  Ac- 
quisition, 297. 

Sulina  Channel,  177. 

Sully,  450.  (o). 

Sweden.     See  Norway. 

Swiss  Cantons,  Confederation  of,  134. 


T. 


Talbot,  Lord,  62. 

Talleyrand,  Prince,  39.  Memoire  Rai- 
sonnee  on  Testamentary  Disposition, 
300.  (a). 

Tandy,  Napper,  arrested  in  Hamburg, 
413. 

Tanzimat,  117. 

Tasso,  80.  (r). 

Taunton's  Reports,  67.  (e). 

Taylor,  3.  (/),  13.  (/),  18.  (y). 

Temple,  Sir  William,  196. 

Territory,  national,  consists  of  Water 
as  well  as  of  Land,  166.  Exchange 
of,  290.  Cessions  of,  292.  Gifts  of 
293. 

Testamentary  Disposition,  a  Mode  of 
territorial  Acquisition,  300. 

Themistocles,  17. 

Things,  and  Rights,  165. 

Thucydides,  16.  79. 

Times,  The,  416. 

Tindall,  Matthew,  Essay  concerning 
the  Laws  of  Nations  and  Rights  of 
Sovereigns,  153.  (q),  398.  406. 

Tittman,  Die  Strafrechtspflege  in  Vol- 
kerrechtlicher  Riicksicht,  356.  (/), 
411.  (i). 

Tordesillas,  Treaty  of,  245. 

Treaties.  (See  beginning  of  this  Vo- 
lume for  list  of.)  General  Divisions 
of,  and  Remarks  upon,  48-9.  Effect 
of,  upon  General  International  Law, 
44-7.  49.  Between  Russia  and  the 
Porte,  83 — 87.  Relating  to  the 
Germanic  Confederation,  123.  Re- 
lating to  the  Isthmus  of  Central 
America,  218.  Treaty  of  Partition, 
289.  Relating  to  Exchange  of 
Territories,  290,  291.  Secret,  be- 
tween the  French  Republic  and 
Spain,  294.  Between  England  and 
France  in  1845,  Article  in  relation 
to  Right  of  Visit,  326.  Relating  to 


INDEX. 


393 


commissioning  Privateers,  1786,  be- 
tween France  and  Holland,  1662. 
France  and  United  States  of  North 
America,  1778.  395.  Between  North 
American  United  States  and  Prussia, 
1785,  between  Denmark  and  Genoa, 
1789,  396.  Particular  Provision  in 
Treaties  between  France  and  Amer- 
ica, 396.  With  Denmark  in  1660, 
relating  to  Extradition  of  Regicides, 
412.  Relating  to  Balance  of  Power, 
451.  &c.  To  Intervention  on  reli- 
gious Grounds,  473,  &c. 

Troplong,  19.  (z),  242.  (n),  266.  (e). 
De  1'Infl.  du  Christ,  sur  le  Droit 
Civil,  316.  (6). 

Turkey,  not  represented  at  the  Con- 
gress of  Vienna,  82.  Consuls  of 
Christian  Powers  residing  in,  363. 
See  Porte. 

Twiss,  Relations  of  the  Duchies  of 
Schleswig  and  Holstein,  130.  (m), 
132.  (s)  Oregon  Boundary,  260.  (6) 

U. 

Ulpian,  31.  (i),  189. 

Univers,  L',  (Newspaper),  478.  (e). 

Universitas,  165. 

Use  and  Settlement,  247-48. 

Usucapio,  266.  Distinction  between, 
and  Praescriptio  (Schmalzgrueber), 
268.  (i) 

Utrecht,  Treaty  of,  25.  (o),  207.  Inter- 
pretation of  the  Language  of,  248. 
290.  Between  France  and  England 
in  1713,  305.  Between  Spain  and 
England,  305.  Instances  of  Renun- 
ciations of  Territory  in,  310. 


V. 


Valin,  Commentaries,  41.  51.  198.  (i). 
210.  (6).  OnPiracy,381.(e).  Ordon- 
nance  de  la  Marine,  395. 

Varro,  De  LinguS  Latin  a,  491. 

Vattel,  5.  (n),  3.  (h),  8.  11.  (6),  13. 
(/),  22.  23.  (A),  29,  30.  (/),  32.  38. 
(d),59.'(«),75.  (a),  76,  (d),77.(/), 
78.  (A),  89.  (a),  147.  (a),  153.  168, 
(/.  g.  i},  169.  186.  (n),  189.  (»).  190. 
202.  213.  225.  227.  231,  232.  (n), 
233.  (p),  243.  (p),  246,  247,  248. 
(e),  255,  (o),  259.  (y),  261.  265.  272. 
(r),  276.  283,  284.  286,  287.  302.(a), 
303.  (d),  366.  377.  (z),  393.  (t), 
410.  (/),  413.  (r),  436.  (g),  448. 
(e),  469. 

Versailles,  Treaty  of,  25.  (o). 

Vienna,  Treaty  of,  25.  (o).  Congress 
of,  39.  Turkey  not  represented  at, 
SEPTEMBER,  1854. — 26 


82.  Annexe,  125.  173.  Articles  of, 
relating  to  Navigation  of  Rivers, 
176.  Treaty  of,  in  1815,  303.  Con- 
gress of,  in  1815,  310.  Talleyrand's 
Note  to,  440. 

Visigoths,  Code  of  the,  361. 

Voet,  John,  28.  66,  67.  410. 

Paul,  409. 


W. 

Wachtor,  xv.  (Praef.) 

Wacksmuth,  Jus  Gentium  quale  obti- 

nuit  apud  Graecos,  vii.  (Praaf.) 
Waites,  American   State  Papers,  34. 

(P)- 

Wallace,  260. 
Wallachia.     See  Moldavia. 
Waltershausen,  99.  («). 
Ward,  21.  (/)     Law  of  Nations,  81. 

(z). 
Warnkoenig,  9.  (a),  59.  (c),  72.  (a),  237. 

(c),  238.  (d),  240.  (g),  311.  491. 
Warsaw,  Duchy  of,  89. 
Washington,  Treaty  of,  264. 

Circuit  Rep.  353. 

Webster,  Mr.,  53.  209. 

Wenck,  Cod.  J.  G.,  263.  (h),  467.  (a), 

477.  (6),  478.  (c). 
Westminster,  Treaty  of,  196. 
Westphalia,  Treaty  of,  24.  (o). 
Wheaton's  Elem.  de  Dr.  Inter.,  44.  (e), 

51.  (<),  58.  (a),  89.  (a),  90.  (6),  94. 
p),  346.  (e),  363.  (i),  364.  (r),  366. 
z),  373.  (m),  376,  [*),  377.  (z),  393. 
I),  434.  (d). 
Wheaton's  Hist.,  34,  (p),  39.  (h),  49. 


P),  61. 
130.  (TO.  n 
c),  158.  (n 


c),  158.  (n 
182.  (i», 


,  53.  86.  (/),  107.  (e), 
,  138.  (a),  143.  (q),  156. 


.  (a), 
8.  (d), 


,  168.  (d),  169.  176,  (6), 
186.  (n),  189.  (v),   190. 

195.  (6),"  197, 198.  201. 215.  (o),  237. 

247.  (z),  262,  263.  (fc),  264.  (TO),  277. 

(d),  283.  (/),  288.  (q),  309.  (*),  325. 

(c),  326.  (e),  353.  373.  Letter  of  Mr. 

Webster  to  Lord  Ashburton,  434.  (d), 

437.  (i),  439.  (m),  449.  (Z),  452.  (r.  »), 

460.  (/). 
Wheaton's  Rep.,  353.  (a),  380.  (d).  The 

Santissina  Trinidad,  369.  373.     The 

Arrogante    Barcelones,   372.      The 

Monte  Allegro,  372. 
Wicquefort,  M.  de,  Ambassadeur  et  ses 

Fonctions,  342.  365. 
William  III.,  198. 
Wiseman,  Excellency  of  the  Civil  Law, 

32.  (6),  33.  (o). 

Witt,  De,  Grand  Pensioner,  413. 
Wolff,  2.  (6),  26,  28,  29.    Jus.  Nat., 

265.  (a).     Jus.  Gent.  355.  (e) 


394 


PHILLIMORE    ON     INTERNATIONAL    LAW. 


Writers.     See  Commentators  on  Inter- 
national Law. 
Wynford,  Lord,  35.  (s). 

Z. 

Zacharia,  Deutsches  Staats  und  Bun- 


desrecht,  120.  (a.  b),  122.  (a.c),  130. 

(m),  131.  (o),  132.  (q.  r),  133.  (<). 
Zollverein,  The,  146. 
Zouch,  3.  (.;),  17.  (M),  232.  (o)   De  Ju- 

dicio  inter  Gentes,  347,  (n),  348.  (o). 


TREATISE 


CONTRACT  OF  PARTNERSHIP 
BY  POTHIER: 


THE    CIVIL  CODE  AND  CODE   OF   COMMEKCE 
RELATING    TO    THAT    SUBJECT, 


IN   THE   SAME   ORDER. 


form 


WITH    NOTES    REFERRING    TO    THE   DECISIONS    OF    THE 
ENGLISH  COURTS. 


BY    OWEN    DAVIES    TUDOR, 

OP    THE    MIDDLE    TEMPLE,    ESQ.,    BARRISTER- AT-LAW. 


PHILADELPHIA: 
T.  &  J.  W.  JOHNSON,  LAW  BOOKSELLERS, 

NO.    197   CHESTNUT    STREET. 

1854. 


KITE  &  WALTON, 


TO 


THE    RIGHT    HONOURABLE 


THE    LORD   JUSTICE   KNIGHT    BRUCE, 


IS,      BY     PERMISSION, 


WITH   THE  GREATEST   RESPECT 


DEDICATED. 


PREFACE 

BY 

THE'  TRANSLATOR. 


THE  merits  of  the  following  Treatise  of  Pothier  on  Partnership,  and 
its  utility  as  being  often  cited  in  our  Courts,  and  referred  to  by  our  text 
writers,  would,  it  is  believed,  sufficiently  justify  this  publication.  The 
principal  object,  however  of  the  Translator  has  been  by  adding  to  the 
Notes  the  French  Civil  and  Commercial  Code  upon  this  subject,  to  show, 
by  one  example,  in  what  mode  those  Codes  were  framed,  and  to  what  ex- 
tent their  framers  were  indebted  to  the  Treatises  of  Pothier.  This  work 
will,  it  is  believed,  illustrate  in  a  striking  manner  what  is  asserted  by  M. 
Dupin  (Aine)  in  the  dissertation(a)  prefixed  to  his  edition  of  the  Treatises 
of  Pothier : — 

"  Les  ouvrages  de  Pothier  n'ont  pas  ete  regus  comme  lois ;  mais  ils  ont 
obtenu  un  honneur  semblable ;  car  plus  des  troits  quarts  du  Code  civil  ont 
ete  littdralement  extraits  de  ses  Traites.  En  effet,  les  redacteurs  de  ce 
Code,  persuades  qu'ils  ne  pourraient  jamais  imaginer  un  ordre  plus  par- 
fait  que  celui  que  Pothier  avait  adopte  pour  ses  divers  traites,  et  que 
nulle  part  ailleurs  ils  ne  trouveraient  ni  des  principes  plus  sftrs,  ni  des 
decisions  plus  equitables,  ont  eu  1'extreme  bon  sens  de  se  borner  a  analy- 
ser ses  ouvrages." 


30  CHANCERY  LANE, 
January,  1854. 


(a)  P.  104. 


CONTENTS. 


The  pages  referred  to  are  those  within  brackets  [  ]. 

Preliminary  Article  .......       1 

CHAPTER    I. 

Of  the  Nature  of  the  Contract  of  Partnership  .  .  .  .2 

§       I.  In  what  Partnership  differs   from   Community  of  Part- 
ownership             .....  t6. 

f    II.  To  what  Class  of  Contracts  Partnership  belongs    .  4 

g  III.  What  is  of  the  Essence  of  the  Contract  of  Partnership  5 
g  IV.  What  Natural  Equity  requires  in  the  Contract  of  Partner 

ship           .             .             .             ...  11 

§    V.  Of  Fictitious  Contracts  of  Partnership     .   .            .  17 


CHAPTER  II. 

Of  the  different  Kinds  of  Partnerships         .  .  .  .  .23 

SECT.  I.  Of  Universal  Partnerships  .  .  .  .  .     ib. 

ART.  I.  On  the  Partnership  Universorum  Bonorum  .  .    24 

§      I.  What  it  is.     When  it  is  to  be  considered  as  contracted, 

and  between  what  Persons  it  can  be  contracted  .    ib. 

$    II.  How  the  Property  of  the  Partners  is  communicated  or  ren- 
dered common    .  .  .         ,-'*'•        •  .25 
|  III.  What  does  or  does  not  enter  into  the  Partnership  Univer- 
sorum Bonorum               .            .            .            .  .27 

§  IV.  Of  Charges  or  Incumbrances  on  the  Partnership  Universo- 
rum Bonorum     .  .  .  .  .  .29 

ART.  II.   On  the  Second  Kind  of  Universal  Partnership,  called  by 

the  Romans  Universorum  quce  ex  quaestu  veniunt  .    32 

SEKT.  II.  On  Particular  Partnerships       .  .  .  *  .35 

§      I.  Of  Partnerships  in  certain  Things  .  .  .36 

§     II.  Of  Partnerships  for  the  Exercise  of  a  Profession    .  .     38 

I  III.  Of  Partnership  for  Commerce  (or  Trade)    .  .  .39 


CHAPTER    III. 

The  different  Clauses  in  Partnership  Contract         ,   '         .         "\  .    43 


Vlll  POTHIER    ON    PARTNERSHIP. 

g  I.  The  Clauses  concerning  the  Time  for  the  Commencement 

and  the  Duration  of  the  Partnership  .  .  .44 

$  II.  The  Clauses  which  relate  to  the  management  of  the  Part- 
nership .  .  .  .  .  .  .45 

§  III.  As  to  the  Clauses  concerning  the  Shares  of  each  of  the 

Partners  in  Profits  and  Losses  .  .  .  .49 

|  IV.  Of  the  Clauses  which  concern  the  Manner  of  recompensing 
one  of  the  Partners  who,  although  they  are  Partners  for 
equal  Shares,  has  brought  more  than  the  others  into  the 
Partnership  .  .  .  .  .  .51 


CHAPTER    IV. 

As  to  the  persons  who  can  enter  into,  and  the  Forms  required  by  our  Law 

for  the  Contract  of  Partnership               .-  ...            .             .             .             .  54 

ART.     I.  Of  the  Persons  who  can  enter  into  the  Contract  of  Part- 
nership    .            .    ,         .            .            .            .            .  ib. 

ART.  II.  Of  the  Forms  required  for  the  Contract  of  Partnership      .  55 

§       I.  Of  the  Forms  required  for  Universal  Partnerships             .  56 

\     II.  Of  the  Forms  required  for  commercial  Partnerships           .  58 
§    III.  On  particular  Partnerships  which  are  not  Commercial  Part- 
nerships  .            .            .            .            .            .            .61 


CHAPTER    V. 

Of  the  Right  each  of  the  Partners  has  to  the  Property  belonging  to  the 
Partnership  ...  .    ib. 


I.  General  Principles 
First  Maxim 
Second  Maxim 
Third  Maxim 
Fourth  Maxim 


ib. 
ib. 
62 
63 
64 


II.  Whether  one  Partner  can  associate  a  Third  Party  in  the 
Partnership,  or  only  as  to  his  own  Share ;  and  of  the 
Effect  of  his  doing  so  .  .  .  .66 


CHAPTER    VI. 

Of  the  Debts  of  Partnerships,  and  the  Liability  of  each  of  the  Partners 

for  them      .            .            .            .            .            .;           .            .            .  70 

§      I.  Of  the  Debts  of  Partnerships  en  nom  collectif       .            .  ib. 

First  Condition        .            .            *,'        .          'V           .  71 

Second  Condition     .            .           V            .    ,        .            .  74 
\    II.  Of  the    Debts   of  Partnerships  en  commandite,  and  of 

Anonymous  Partnerships  .  .  .  .75 

§  HI.  Of  the  Debts  of  Partnerships  not  Partnerships  in  Trade  77 


CHAPTER    VIL 

The  respective  Obligations  of  Partners,  and  the  Action  Pro  Socio  .    81 

ART.  I.  As  to  the  different  Things  which  each  of  the  Partners 
can  owe  to  the  Partnership,  and  for  which  he  is  obliged 
to  account  to  his  Copartners  .  .  .  .  ib 

$      I.  As  to  what  a  Partner  has  agreed  to  contribute  to  Part- 
nership    .  .  .  .        '    i"'"         .  .     82 


CONTENTS.  IX 

|    II.  As  to  what  each  of  the  Partners  has  withdrawn  from  the 

Common  Funds    .  .  .  .  .  .86 

§  HE.  Of  the  Loss  that  One  Partner  has  caused  to  the  Partner- 
ship .  .  .  .  .  .91 

ART.  II.  As  to  the  Things  for  which  a  Partner  may  be  Creditor  of 
the  Partnership,  and  for  which  the  other  Parners  are 
obliged  to  account  to  him  according  to  his  share  in  the 
Partnership  .  .  .  .  .  .92 

ART.  III.  As  to  other  Kinds  of  Obligations  which  arise  from  the 

Contract  of  Partnership  .  .  .  .97 

ART.  IV.  Of  the  Action  Pro  Socio     .  .  97 


CHAPTER    VIII. 

The  different  Modes  in  which  a  Partnership  is  dissolved     ,  .  .  101 

|      I.  As  to  the  Expiration  of  the  Time  .  .  .     ib. 

$     IE.  The  Extinction  of  the  Thing  which  constitutes  the  Object 
of  the  Partnership,  and  of  the  Completion  of  the  Busi- 
ness         .  ....  102 
§  ni.  As  to  the  Death  of  One  of  the  Partners,  and  his  Insolvency  105 
\  IV.  As  to  the  Wish  to  be  no  longer  a  Partner   .  .  .109 


CHAPTER    IX. 

The  Effect  of  the  Dissolution  of  Partnerships,  and  the  Distribution  of  the 
Effects       ....  ....  116 

ART.    I.  As  to  the  Effects  of  the  Dissolution  of  Partnership         .  116 
ART.  II.  As  to   the  Distribution  or   Division  of  the   Partnership 

Effects      .  .  .  .  .  .  .122 

§       I.  By  whom,  against  whom,  and  when,  the  Demand  for  Dis- 
tribution can  be  made  .  .  .  .123 

§      II.  How  Parties  should  proceed  to  a  Distribution      .  .125 

g    III.  As  to  the  Obligations  which  arise  from  the  Distribution   .  131 
\    IV.  As  to  the  effect  of  Distribution          .  .  .        .133 


ON 


THE    CONTEACT 


OF 


PARTNERSHIP. 


PRELIMINARY  ARTICLE. 

1.  PARTNERSHIP  is Agofitract,  by  which^two  pr  more  persons  put,  pr 

oblige  themselves  to  put,  something  in  common,  in  order  to  make  there- 
from in  common  a  lawful  profit,  of  which  they  reciprocally  bind  them- 
selves to  render  each  other  an  account. 

We  shall  treat  in  the  First  Chapter,  of  the  nature  of  the  Contract  of 
Partnership.  We  shall  enumerate  in  the  Second,  the  different  kinds  of 
Partnerships;  in  the  Third,  the  different  clauses  in  Partnership  Con- 
tracts. We  shall  examine  in  the  Fourth,  what  are  the  forms  which  our 
law  requires  in  the  Contract  of  Partnership.  We  shall  treat  in  the 
Fifth,  of  the  right  each  of  the  partners  has  to  the  Partnership  Property. 
*In  the  Sixth,  how  each  of  them  is  bound  by  debts.  In  the  r  t»  -. 
Seventh,  of  the  obligations  which  arise  from  the  Contract  of  L 
Partnership.  We  shall  examine  in  the  Eighth,  how  Partnership  is  dis- 
solved. In  the  Ninth,  we  shall  treat  of  the  distribution  of  the  Partner- 
ship effects. 

1  Partnership  is  a  contract  by  which  two  or  more  persons  agree  to  put  some- 
thing in  common  with  a  view  of  dividing  the  profit  which  may  result  therefrom. 
Civil  Code  of  France,  art  1832.  Every  partnership  must  have  a  lawful  object,  and 
be  contracted  for  the  common  interest  of  the  parties.  Ibid.,  art.  1833.  See  Wats. 
Partn.  1.  Coll.  Partn.  2.  2  Bell's  Comm.  p.  613.,  4th  edit.  Stor.  Partn.  2.  Code 
of  Louisiana,  art.  27*72.  2775. 


12  POTHIEB    ON    PARTNERSHIP. 

CHAPTEE    I. 

OF  THE  NATURE  OF  THE  CONTRACT  OF  PARTNERSHIP. 

WE  shall  examine, — 1.  Wherein  Partnership  differs  from  community 
or  partownership.  2.  To  what  class  of  contracts  it  belongs.  3.  What  is 
of  its  essence.  4.  What  natural  equity  requires  in  this  contract.  5.  We 
shall  treat  of  fictitious  Contracts  of  Partnership. 

§  I.  In  what  Partnership  differs  from  Community  or  Partownership. 

2.  Partnership  and  Community  are  not  the  same  thing.    Partnerhip  is 
P  jj,o   -  a  contract,  by  which  two  or  more  persons  *agree  to  put  something 

J  in  common.  When  in  execution  of  that  contract  they  have  actu- 
ally put  in  common  what  they  agreed  to  do,  a  community  certainly  is 
formed  between  them ;  but  this  kind  of  community  is  also  called  a  part- 
nership, because  it  is  formed  in  execution  of  a  contract  of  partnership. 

Th^ere  is  also  a  community  which  exists  between  several  persons,  with- 
out the  intervention  of  any  contract,  and  consequently  without  any  con- 
tra6t  of  partnership,  as  when  an  estate  has  descended  to  co-heirs,  or  a 
legacy  has  been  bequeathed  to  several  legatees  jointly.  In  these  cases 
there  exists  amongst  the  heirs  a  community  of  the  descended  estate, 
amongst  the  legatees  a  community  of  the  property  bequeathed,  but  there 
is  no  partnership  between  them.  A  community  of  this  kind  is  not  a 
contract,  but  quasi  contract,  which  creates,  amongst  persons  having  things 
in  common,  obligations  similar  to  those  which  have  their  origin  from  the 
contract  of  partnership.* 

3.  In  this  alone  consists  the  difference  between  partnership  and  com- 
munity.    It  is  a  gross  error  to  say,  with  the  author  of  "  The  Conferences 
of  Paris/'  vol.  ii.  p.  15,  that  partnership  differers  from  community  in 

2  Code  of  Louisiana,  art.  2777.  The  same  distinction  exists  in  our  Law  between 
Partnership  and  Community,  or  Partownership.  In  both,  indeed,  there  exists  a 
community  of  interests  ;  in  the  former,  however,  it  is  the  result  of  a  contract  be- 
tween the  parties,  whereby  there  is  either  expressed  or  implied  a  community  of 
profit  and  loss ;  the  latter  often  either  exists  independent  of  any  contract  what- 
ever, as  in  the  case  of  joint  legatees,  or  devisees,  or  coheirs,  or  at  any  rate  inde- 
pendent of  any  contract  implying  a  community  of  profit  and  loss  ;  as  where  per- 
sons jointly  purchase  property,  which  is  not  to  be  sold  for  their  common  benefit, 
but  to  be  allotted  to  them  in  distinct  shares,  such  community  of  interest  will  not 
constitute  a  partnership.  Hoare  v.  Dawes,  Doug.  371 ;  Coope  v.  Eyre,  1  H.  Black. 
37  ;  Gibson  v.  Lupton,  9  Bingh.  297.  So,  likewise,  although  there  is  a  commu- 
nity of  interest  between  the  representatives  of  a  deceased  partner  and  the  surviv- 
ing partners,  there  is  not,  independently  of  contract,  any  partnership  between 
them.  Pearce  v.  Chamberlain,  2  Ves.  33. 

Upon  the  same  principle,  where  persons  engage  to  do  some  particular  work  and 
receive  money  for  it,  not  on  a  joint  account  or  for  their  joint  benefit,  but  to  be  divi- 
sible between  them  on  receipt ;  the  contracting  parties,  it  seems,  will  not  be  part- 
ners but  joint  contractors.  Finckle  v.  Stacy,  Sel.  Ch.  Ca.  9.  See  the  remarks  of 
Wigram,  V.  C.,  7  Hare,  174.  3  Ersk.  3,  \  13.  Bell's  Law  of  Scotland,  133. 

*  Pothier  treats  of  these  quasi  contracts  in  an  Appendix  to  this  treatise. 


CONTRACT     OF     PARTNERSHIP.  13 

this  respect,  viz.  »  that  in  partnership  the  capital  brought  in  by  each 
of  the  partners  is  not  common,  and  that  the  profits  only  are  properly 
common." 

This  is  erroneous.  For  if  partners  sometimes  put  into  partnership  the 
use  only  of  certain  things,  of  which  they  remain  each  separately  the 
owners,  they  sometimes  also  put  into  partnership  the  things  which  they 
bring  into  it,  and  render  them  common  amongst  themselves,  as  well  with 
respect  to  property  as  with  respect  to  mere  enjoyment. 

To  establish  this  paradox,  the  author  of  "  The  Conferences"  cites  in 
another  place  these  terms  of  Law  13,  §  1,  ff.  De  *Praescr.  Verb.  p+ .  -. 
(Dig.  Lib.  19,  tit.  5,  1.  13,  §  1,)  "  Nemo  societatem  contrahendo  rei  *-  -I 
suce  dominus  esse  desinit."  That  author  has  not  understood  the  case  in 
this  paragraph.  It  is  this;  the  owner  of  a  certain  plot  of  ground  con- 
veys the  whole  of  it  to  you,  upon  condition  that  after  you  have  built 
upon  it  you  will  reconvey  to  him  a  portion  of  the  ground  so  built  upon. 
Julian  asks,  what  kind  of  contract  is  comprehended  in  this  agreement  ? 
He  says,  that  it  is  not  a  Contract  of  Partnership,  because  the  owner  has 
sold  the  plot  of  ground  entirely  to  you,  and  that  nemo  societatem  contra- 
hendo rei  suge  dominus  esse  desinit ;  that  is  to  say,  that  he,  who  puts  a 
thing  into  partnership,  does  not  cease  entirely  to  be  owner  of  it,  save 
only  so  far  as  regards  one  part  of  it,  which  he  transfers  to  his  partner 
by  making  it  common ;  and  he  adds  at  the  end,  that  it  would  be  a  Con- 
tract of  Partnership  if  a  part  only  of  the  land  were  conveyed  to  you. 

§  II.    To  what  Class  of  Contracts  Partnership  belongs. 

4.  Partnership  is  a  contract  of  natural  right,  which  is  formed  and  go- 
verned by  the  rules  only  of  natural  justice. 

4  All  partnerships  must  be  reduced  into  writing,  when  their  object  is  more  than 
the  value  of  one  hundred  and  fifty  francs. 

No  evidence  is  admissible  against  or  beyond  the  contents  of  the  act  of  partner- 
ship, nor  concerning  what  shall  be  alleged  to  have  been  said  before,  at  the  time  of 
or  subsequently  to  such  act,  although  the  question  be  of  a  sum  or  value  less  than 
one  hundred  and  fifty  francs.  Civ.  Code  of  France,  art. 

It  will  be  observed,  that  the  regulations  of  the  ordonnance,  which  Pothier  says 
had  fallen  into  disuse  in  his  time,  have  been  retained  in  the  French  Code. 

According  to  the  Law  of  England,  no  writing  is  necessary  to  constitute  a  pri- 
vate unincorporated  partnership,  the  consent  of  the  parties,  or  their  dealings  from 
which  a  contract  may  be  implied,  being  sufficient  for  that  purpose;  (Peacock  v. 
Peacock,  16  Ves.  49.  ;  Featherstonhaugh  v.  Fenwick,  17  Ves.  298;  Alderson  v. 
Clay,  1  Stark.  405  ;)  and  when  there  is  an  agreement  in  writing  it  is  by  the  unani- 
mous concurrence  of  all  the  partners,  open  to  variations  from  day  to  day,  and  the 
terms  of  such  variations  may  not  only  be  evidence  by  writing,  but  also  by  the  con- 
duct of  the  parties  in  relation  to  the  agreement  and  their  mode  of  carrying  on  the 
business  (England  v.  Curling,  8  Beav.  129.  133.  137,  and  see  Geddes  v.  Wallace, 
2  Bli.  (0.  S.)  270.  295,  297);  and  special  clauses  in  partnership  articles,  for  in- 
stance, as  to  the  mode  of  taking  accounts,  will  be  considered  as  expunged  from 
the  articles  if  the  parties  have  not  acted  on  them.  Jackson  v.  Sedgwick,  1  Swanst. 
460.  469. 

The  contract  of  Partnership,  as  it  is  founded  on  the  consent  of  the  parties  must 
be  entered  into  with  perfect  good  faith,  hence,  when  a  person  has  been  induced 
by  fraud  or  misrepresentation  to  become  a  partner,  a  Court  of  Equity  will  not 
only  declare  the  contract  to  be  void,  but  will  put  the  injured  party  as  far  as 
possible  in  possession  of  his  original  rights  and  property.  Tattersall  v.  Groote. 


1-1  POTHIER    ON    PARTNER  SHI  P. 

r  #_  ..  If  the  Ordonnances  have  prescribed  certain  formalities  for  *this 
L  J  contract,  they  have  only  been  prescribed  in  order  to  serve  as  a  proof 
of  it,  nor  do  they  belong  to  its  substance.  Although  they  may  not  have 
been  observed,  the  contract  between  the  contracting  parties  is  complete, 
and  it  creates  between  them  the  obligations  which  arise  therefrom  ;  it  is 
only  with  respect  to  third  parties  that  these  formalities  are  required. 

5.  This  contract,  like  those  of  sale  and  letting  out  to  hire,  is  consen- 
sual ;  that  is  to  say,  it  is  formed  by  the  consent  alone  of  the  contracting 
parties,  and  is  perfectly  complete  as  soon  as  the  parties  have  each  agreed 
to  bring  something  in  common,  although  they  may  not  at  that  time  have 
actually  contributed  their  quota. 

6.  This  contract  is  synallagmatic  or  bilateral,  for  each  of  the  parties 
by  it  engages  himself  reciprocally  towards  the  others. 

7.  Lastly,  it  is  a  commutative  contract,  as  each  of  the  contracting  par- 
ties expects  to  receive  as  much  as  he  gives. 

§  III.    What  is  of  the  Essence  of  the  Contract  of  Partnership. 

8.  It  is  essential  in  the  contract  of  Partnership,  first,  that  each  of  the 
*fi  ~\  Par^es  should  bring  or  oblige  himself  to  bring  *something  into 

L  J  the  partnership ;  either  money  or  other  effects,  or  his  labour  and 
industry.  If,  therefore,  a  trader,  from  affection  for  his  niece,  agrees, 
during  a  certain  number  of  years,  to  give  her  yearly  a  certain  share  of 
the  profit  which  he  may  make,  and  the  niece  supplies  to  his  business 
nothing  in  return — neither  money,  nor  goods,  nor  labour, — this  agree- 
ment is  not  a  Contract  of  Partnership  ;  because  the  niece  neither  brings 
nor  promises  to  bring  anything  into  the  partnership  :  it  is  a  pure  dona- 
tion, which  the  trader  wishes  to  make  to  his  niece,  for  a  share  of  his  ex- 
pected profits  in  trade;  and  it  is  not  valid  unless  it  were  made  in  the  mar- 
riage contract  of  the  niece,  because,  according  to  our  French  law,  dona- 
tions of  future  property  are  not  binding,  except  in  the  contract  of  mar- 
riage. 

9.  It  is  not,  however,  necessary  that  what  each  of  the  contracting  par- 
ties brings  or  promises  to  bring  into  the  partnership  should  be  of  the  same 

2  Bos.  &  Pull.  131 ;  Ex  parte  Broome,  1  Rose,  69  ;  Green  v.  Barrett,  1  Sim.  45; 
Oldaker  v.  Lavender,  6  Sim.  239.  Stor.  Partn.  341  ;  Coll.  Partn.  244,  245. 

5  Code  of  Louisiana,  art.  2776. 

6  Ibid.,  art.  2772.  ?  Ibid.,  art.  2772. 

s  Every  partner  must  bring  to  the  partnership  either  money,  or  other  property, 
or  his  skill.  Civ.  Code  of  France,  art.  1833.  Code  of  Louisiana,  art.  2772. 
With  regard  to  the  partners,  inter  sese,  our  law  is  the  same  in  this  respect  (Peacock 
v.  Peacock,  16  Ves.  49  ;  Reid  v.  Hollinshead,  4  B.  &  C.  878  ;  7  Dow.  &  Ryl.  444  ; 
Meyer  v.  Sharpe,  5  Taunt.  74  ;  Cheap  v.  Cramond,  4  B.  &  A.  663) ;  but  with 
regard  to  third  parties,  if  a  person  holds  himself  out  as  a  partner  ;  as,  for  instance, 
by  allowing  his  name  to  appear  in  the  firm,  or  by  acting  in  such  manner  as  to 
induce  the  belief  that  he  is  a  partner  ;  he  will,  although  contributing  nothing  to 
the  partnership,  and  entitled  to  no  profits  from  it,  be  liable  as  a  partner  to  such 
third  parties  ;  such  person  is  commonly  called  a  nominal  partner,  in  contradistinction 
to  persons  having  an  interest  in  the  profits  whose  names  appear  to  the  world  as, 
and  who  are,  actual  partners,  for  both  nominal  and  actual  partners  are  what  are 
called  ostensible  partners.  Waugh  v.  Carver,  2  H.  Bl.  235.  246. 

8  See  Peacock  v.  Peacock,  16  Ves.  49. 


CONTRACT    OF    PARTNERSHIP.  15 

nature.  If  one  brings,  or  promises  to  bring,  money  or  goods,  it  is  not 
necessary  that  the  other  should,  in  like  manner,  bring  the  same  ;  and  it 
is  sufficient  that  he  should  bring  his  labour  and  industry.  Societatem 
una  pecuniam  conferente,  alio  operam,  posse  contrahi  magis  dbtinuit. 
L.  i.,  Cod.  Pro  Soc.,  Cod.  4,  tit.  37,  1.  1. 

10.  But  it  is  necessary  that  what  each  of  the  partners  brings  into  the 
partnership  should  be  appreciable.     Therefore,  if  the  partners  for  the 
establishment  of  a  manufacture  should  agree  with  a  man  in  power  to 
give  him  a  certain  share  in  their  anticipated  profits  during  a  certain  num- 
ber of  years,  upon  condition  that  he  would  aid  them  by  his  interest  in 
the  affairs  of  that  manufacture,  that  agreement  would  not  be  a  Contract 
of  Partnership;  because  the  assistance  from  the  *interest  of  such  r  #7  n 
person  is  not  a  thing  which  is  appreciable  or  capable  of  being  val-  L 
ued.     That  agreement  is  void,  as  contrary  to  public  probity  and  good 
morals,  which  do  not  permit  persons  in  power  to  barter  their  interest  for 
money. 

11.  Secondly  :  it  is  essential  in   this  contract  that  the  partnership 
should  be  contracted  for  the  common  interest  of  the  parties.     When,  in 
an  agreement,  the  private  interest  of  one  of  the  parties  only  is  regarded, 
it  is  not  a  Contract  of  Partnership,  but  a  contract  of  mandate,  subject 
to  revocation.     Therefore,  in  that  case  of  Law  52,  ff.  pro  Soc.     (Dig. 
lib.  xvii.  tit.  2,  1.  52,) — where,  having  entered  into  an  agreement  with 
my  neighbour  that  he  should  buy  an  estate  then  for  sale  in  our  neigh- 
bourhood, and  that  he  should  give  me  up  a  certain  part  of  it  contiguous 
to  my  estate,  and  should  himself  retain  the  remainder,  having  afterwards 
myself  purchased  that  estate,  it  is  asked  if  my  neighbour  has  a  right 
to  bring  against  me  the  action^pro  socio,  to  compel  me  to  give  him  a  part 
of  that  purchase.     Julian  answers  that  it  depends  upon  our  intention  in 
entering  into  that  agreement.     If  it  was  our. intention  to  make  the  pur- 
chase in  order  that  we  might  each  derive  a  profit  therefrom,  it  is  a  con- 
tract of  partnership,  which  would  give  my  neighbour  the  right  to  that 
action.     But  if  our  intention  was  solely  that  he  should  make  the  pur- 
chase in   order  to  do  me  a  favour,  the  agreement  amounts  only  to  a 
mandate,  which  not  having  been  executed  by  him,  gives  him  no  right  of 
action. 

12.  Thirdly :  it  is  essential  in  the  Contract  of  Partnership  that  the 
parties  propose  thereby  to  make  a  gain  or  profit  in  which  each,  of  the 
contracting  parties  may  expect  to  have  a  share,  in  proportion  to  what  he 
has  brought  into  the  partnership. 

Therefore,  if,  by  the  contract  of  a  pretended  partnership,  it  has  been 
agreed  that  the  entire  profit  should  belong  to  one  of  the  contracting 
parties,  without  the  other  being  able,  in  any  case,  to  make  any  claim  to 
it,  such  an  agreement  would  not  be  a  contract  of  partnership,  and  would 
be  void,  *as  manifestly  unjust.  The  Roman  jurisconsults  have  r  *o  -i 
given  to  this  kind  of  agreement  the  name  of  Leonine  Partnership,  L  J 

10  See  Civ.  Cod.  of  France,  1833,  ante,  note  8.     3  Kent's  Comm.  24. 

12  An  agreement  which  would  give  to  one  of  the  partners  the  whole  of  the  profits 
is  void.  Civ.  Cod.  of  France,  1855.  Code  of  Louisiana,  art.  2785;  Bailey  v. 
Clark,  6  Pick.  372  ;  2  Bell's  Comm.  615. 

SEPTEMBER,  1854. — 27 


16  POTEIER    ON    PARTNERSHIP. 

by  allusion  to  the  fable  of  the  lion  \vho,  having  made  a  partnership 
agreement  with  the  other  animals  to  go  a  hunting,  secured  for  himself 
the  whole  of  the  prey.  Aristo  refert  Cassium  respondisse  societatem 
talem  cb'ire  non  posse;  ut  alter  lucrum  tantum,  alter  damnum  sentiret !; 
et  hanc  societatem  leoninam  solitum  appellate  ;  et  nos  consentimus. 

Iniquissimum  enim genus  societatis  est,  ex  qua  quis  damnum, 
non  etiam  lucrum  spectet.  L.  xxix.  §  2.  ff.  Pro  Soc.  (Dig.  Lib.  xvii. 
tit.  2,  1.  xxix.  §  2.) 


[*9] 


13.  It  is  not,  however,  necessary  to  the  validity  of  the  *con- 
tract  of  partnership  that  each  of  the  contracting  parties  should 


13  In  commenting  on  this  number  or  section  Mr.  Justice  Story  observes,  that, 
"Pothier  has  not,  indeed,  spoken  with  his  usual  clearness  or  exactness  on  the 
subject.  But  Pardessus  has  expressed  his  opinion  in  the  most  direct  and  satisfac- 
tory manner.  Thus,  he  says,  whenever  a  merchant,  instead,  of  a  fixed  salary, 
agrees  to  give  to  his  agent  a  certain  part  of  the  annual  profit,  the  agent  is  a  letter 
of  his  services  under  an  aleatory  condition,  but  he  is  not  a  partner.  He  cannot 
make  claim  in  that  quality  to  any  proprietary  interest  in  the  merchandise  bought 
with  the  funds  of  his  principal,  although  he  partakes  of  the  profits  thereof.  He 
cannot,  at  least,  without  an  express  stipulation,  have  any  voice  in  the  delibera- 
tions of  the  partnership  ;  and  he  will  not  be  subjected  to  the  contracts  of  the 
partnership  in  respect  to  third  persons,  unless,  indeed,  he  has  exceeded  his  power, 
and  then  he  is  responsible  as  a  mandatary;  so  when  one  person  has  trusted  goods 
to  another,  to  be  sold  for  him,  and  has  agreed  to  give  him  the  whole  or  a  part  of 
the  price,  which  shall  exceed  a  certain  sum,  this  will  not  create  a  partnership 
between  them ;  but  only  be  a  salaried  mandate,  or  commission  to  the  agent  thus 
undertaking  the  business  (Pardess.,  Droit.  Comm.  torn.  iv.  n.  969  ;  Id.  torn.  ii.  n. 
306.  560  ;  torn.  iii.  n.  702).  Duvergier  (Droit.  Civ.  Franc,  torn.  v.  n.  48.  n.  56,)  holds 
the  same  opinion,  and  has  reasoned  out  the  grounds  thereof  with  uncommon 
acuteness  and  ability.  And,  indeed,  it  seems  to  be  the  established  doctrine  of  the 
French  tribunals." — Story,  Partn.  76.  Our  own  law  upon  this  subject  is  similar  to 
the  French ;  the  great  difficulty,  however,  has  been  in  ascertaining  whether  the 
contract  for  the  payment  to  a  person  of  a  salary,  dependent  on  the  amount  of  the 
profits,  makes  the  recipient  a  partner  or  a  mere  agent.  The  cases  upon  this 
subject,  in  which  very  refined  distinctions  are  taken,  are  very  ably  reviewed  in  1 
Smith's  Leading  Cases  in  the  note  to  Waugh  v.  Carver,  p.  490 ;  and  the  learned 
author  comes  to  the  conclusion,  that  whenever  it  appears  that  the  agreement  was 
intended  by  the  partners  themselves  as  one  of  agency  or  service,  but  the  agent  or 
servant  is  to  be  renumerated  by  &  portion  of  the  profits,  then  the  contract  would  be 
considered,  as  between  themselves,  one  of  agency  (Geddes  v.  Wallace,  2  Bligh, 
270  ;  R.  v.  Hartley,  Russ.  &  R.  139)  ;  but  as  between  them  and  third  persons,  one 
of  partnership,  (Smith  v.  Watson,  2  B.  &  C.  407;  Ex  parte  Rowlandson,  1  Rose, 
91 ;  Green  v.  Beasley,  2  Bing.  N.  C.  110  ;  Ex  parte  Langdale,  18  Ves.  300).  But, 
that,  if  the  agent  or  servant  is  to  be  renumerated,  not  by  a  portion  of  the  profits, 
but  by  part  of  a  gross  fund  or  stock  which  is  not  altogether  composed  of  the  profits,  the 
contract,  even  as  against  third  persons,  will  be  one  of  agency,  although  that  fund  or 
stock  may  include  the  profits,  so  that  its  value,  and  the  quantum  of  the  agent's 
reward,  will  necessarily  fluctuate  with  their  fluctuation  (1  Smith's  Leading  Cases, 
507) ;  and,  it  seems,  that  where  the  agent  or  servant  is  not  to  receive  a  part  of 
the  profits  in  specie;  but  a  sum  of  money  calculated  in  proportion  to  a  given 
quantum  of  the  profits,  he  will  not  be  a  partner  even  as  to  third  persons.  (Ex 
parte  Hamper,  17  Ves.  404.  412 ;  Ex  parte  Watson,  19  Ves.  461,  and  see  Grace  v. 
Smith,  2  W.  Black.  998 ;  Pott  v.  Eyton,  3  C.  B.  32 ;  Barry  v.  Nesham,  3  C.  B. 
641  ;  Withington  v.  Herring,  3  M.  &  P.  30 ;  Stocker  T,  Brockelbank,  3  Mac.  & 
Gord.  250).  The  option  to  become  a  partner  and  receive  a  share  of  the  profits, 
even  from  a  time  past,  is  not  of  itself  alone,  and  while  it  remains  unexercised, 
sufficient  to  make  him  a  partner.  Gabriel  v.  Evill,  9  Mee.  &  W.  297,  Car.  &  M. 
358 ;  Ex  parte  Turquand,  2  M.  D.  &  D.  340;  Wilson  v.  Whitehcad,  10  Mee  &  W. 
503. 

A  person  receiving  interest  or  an  annuity,  fixed  as  to  amount  and  duration  for 
money  lent  to  a  firm,  is  not  a  partner,  because  he  has  no  mutuality  in  the  profits 


CONTRACT    OF    PARTNERSHIP.  17 

have,  in  all  events,  a  share  of  the  partnership  profits :  it  is  sufficient 
that  he  may  probably  have  a  share,  which  may  be  made  to  depend  con- 
ditionally on  the  amount  of  the  partnership  profits.  This  is  to  be  found 
in  that  case  of  Law  44,  ff.  Pro  Socio.  (Dig.  lib.  xvii.  tit.  2,  1.  44) : 
Si  Margarita  tibi  vendenda  dedero,  ut  si  ea  decem  vendidisses,  redderes 
mihi  decem ;  si  pluris,  quod  excedit  tu  haberes  :  mihi  videtur}  si  animo 
contrahendse  societatis  id  actum  sit,  pro  socio  esse  actionem. 

In  that  case,  the  tradesman  with  whom  I  have  contracted  partnership 
for  the  sale  of  my  jewels,  to  which  partnership  he  brings  his  labour  and 
industry  in  order  to  sell  them,  would  not  have  any  share  in  the  profits  of 
the  sale,  which  is  the  object  of  the  partnership,  save  in  one  event,  viz., 
if  the  jewels  be  sold  for  more  than  ten  thousand  livres;  and  that  share 
is  regulated  in  proportion,  as  they  shall  be  sold  above  ten  thousand  livres. 
If  they  are  only  sold  for  ten  thousand  livres,  he  will  have  no  part  of  the 
price,  and  he  will  have  lost  the  labour  he  *has  been  at  to  sell  r*-iA-i 
them.  In  the  contract  of  partnership,  then,  there  may  be  with-  L 
held  from  one  of  the  partners,  not  in  all  events,  but  only  in  a  certain 
event,  a  share  in  the  profits  resulting  from  the  partnership,  and  that 
share  may  be  made  to  depend,  as  in  the  case  quoted,  on  the  amount  to 
which  the  profits  may  reach. 

Observe,  with  regard  to  the  natural  equity  of  this  agreement,  it  is 
necessary  that  the  value  of  the  labour  which  the  tradesman  brings  to 
the  partership,  and  which  he  runs  the  risk  of  losing  if  the  jewels  are 
not  sold  for  more  than  ten  thousand  livres,  should  be  equivalent  to  the 
value  of  the  expectation  of  their  being  sold  at  a  greater  price. 

Observe,  also,  that  in  order  that  the  agreement,  by  which  I  have 
agreed  to  give  to  the  person  whom  I  have  commissioned  to  sell  my 
jewels  whatever  they  may  be  sold  for  above  ten  thousand  livres,  should 
comprehend  a  contract  of  partnership,  it  is  necessary  that  such  person 
should  be  a  tradesman  or  a  jeweller  to  whom  I  relinquished  that  part  of 
the  price  in  consideration  of  his  industry  and  care,  which  he  is  to  contri- 
bute in  order  to  procure  an  advantageous  sale  for  my  jewels.  But  if 
that  person  is  neither  a  tradesman  nor  a  jeweller,  and  it  was  in  order  to 
confer  a  gratuity  upon  him  that  I  promised  a  share  in  the  price  of  my 

with  the  firm  (Grace  v.  Smith  2,  Sir  W.  Black.  998)  ;  but  if  he  received  an  annuity 
out  of  (Bond  v.  Pittard,  3  M.  &  WV  357.  361;  Ex  parte  Wheeler,  Buck.  25  ;  Ex 
parte  Chuck,  8  Bingh.  469;  Ex  parte  Hamper,  17  Ves.  404.  412,)  or  in  lieu  of  the 
profits  of  a  trade,  or  determinable  on  the  cessation  of  the  trade  (Bloxam  T.  Pell, 
2  W.  Bl.  999,)  or  an  annuity  (Young  T.  Axtell,  cited  2  H.  Bl.  242 ;  Ex  parte 
Wheeler,  Buck.  25)  or  rate  of  interest  (Ex  parte  Chuck,  8  Bing.  469),  although 
it  be  contingent  (Ex  parte  Wilson,  Buck.  48),  fluctuating  with  the  rate  of  the 
profits,  he  will  be  considered  as  a  partner.  See  Coll.  Part.  26 — 29;  Stor.  Part. 
98. 

The  reason  given  why  in  these  cases,  when  it  is  held  there  is  a  community  of 
profits,  the  person  receiving  a  salary,  an  annuity,  or  interest,  is  considered  as  a 
partner,  is,  that  by  taking  a  part  of  the  profits  he  takes  from  the  creditors  a  part 
of  the  fund  which  is  their  proper  security  for  payment  to  them  of  their  debts. 
Waugh  v.  Carver,  2  H.  Black.  235  ;  Barry  v.  Nesham,  16  L.  J.  C.  P.  21,  and  it  is 
upon  this  ground  that  a  dormant  partner,  that  is  to  say,  one  who  without  being 
known  to  third  parties  as  a  partner  receives  a  share  of  the  profits  of  a  firm,  is  liable 
for  its  engagements.  Robinson  v.  Wilkinson,  3  Price  538  ;  Winter  v.  Crowther, 
1  Cr.  &  Jer.  316. 


18  POTHIER    ON    PARTNERSHIP. 

jewels,  which  I  could  sell  as  advantageously  myself,  in  such  case  the 
agreement  amounts  to  a  donation,  and  not  a  contract  of  partnership ; 
because  that  person  is  not  to  receive  a  share  of  the  proceeds  of  the  sale, 
on  account  of  the  labour  and  industry  which  he  contributes  to  the 
business  of  that  sale,  but  as  a  gratuity.  Therefore  the  jurisconsult,  in 
r  *i  i  -i  the  law  above  cited,  leaves  for  examination  *what  has  been  the 
•J  intention  of  the  parties  in  that  agreement,  si  animo  contrahendse 
societatis  id  actum  sit. 

14.  Fourthly  :  it  is  necessary  to  the  validity  of  a  contract  of  partner- 
ship that  the  business  which  is  its  object,  and  for  which  the  contracting 
parties  associate  themselves,  should  be  lawful,  and  that  the  profit  which 
they  propose  to  draw  therefrom  should  be  a  lawful  profit. 

Therefore,  an  agreement  by  which  persons  enter  into  a  partnership  to 
carry  on  smuggling  is  null  and  void ;  as  well  as  that  by  which  persons 
enter  into  partnership  in  order  to  carry  on  usury,  or  to  keep  a  house  of 
ill  fame  (mauvais  lieu\  or  to  rob;  nee  enim  ulla  societas  malificiorum  ; 
1.  i,  §  14,  De  Tut.  et  Rat.  Distr.  (Dig.  lib.  xxvii.  tit.  3,  1.  i.  1,  §  14,) 
nee,  societas  aut  mandatum  flagitiosce  rei  ullas  vires  halet;  1.  xxxv.  §  2, 
ff.  De  Contr.  Empt.  (Dig.  lib.  xviii.  tit.  1.  1.  35,  §  2.) 

§  IV.    What  natural  Equity  requires  in  the  Contract  of  Partnership. 
FIRST  RULE. 

In  order  that  the  contract  of  partnership  may  be  equitable,  it  is  gene- 
r  *19  Tra^J  necessary  that  the  share  assigned  by  it  to  *each  of  the  part- 
-I  ners  in  the  anticipated  profits  should  be  in  proportion  to  the  value 
of  what  each  of  them  has  brought  into  the  partnership. 

15.  For  example,  if  two  partners  have  contributed  equally  to  the  capital 
of  the  partnership,  they  ought  each  to  have  an  equal  share  in  the  profits. 
But  if  one  of  them  has  brought  in  double  what  the  other  has,  he  ought 
to  have  a  double  share  of  the  profits ;  that  is  to  say,  he  ought  to  have 
two  thirds  and  the  other  only  one  third. 

14  Civ.  Code  of  France,  1833,  ante,  1.  Code  of  Louisiana,  art.  2775.  Our  law 
is  the  same  upon  this  subject,  and  is  now  settled  that  a  partnership  not  only 
entered  into  for  immoral  purposes  such  as  are  mala  in  se,  but  also  for  purposes 
such  as  are  not  bad  in  themselves  but  prohibited  by  the  laws  of  the  country,  is 
void.  The  consequence  is,  that  with  regard  to  transactions  arising  out  of  such 
partnerships,  no  proceedings  can  be  taken  by  the  parties,  either  against  each  other 
or  third  parties ;  for,  although,  as  observed  by  Lord  Mansfield,  "  the  objection 
that  a  contract  is  immoral  or  illegal,  sounds,  at  all  times,  very  ill  in  the  mouth  of 
a  defendant,  it  is  not  for  his  sake  that  the  objection  is  ever  allowed ;  but  it  is 
founded  in  general  principles  of  Policy,  which  the  defendant  has  the  advantage 
of,  contrary  to  the  real  justice  as  between  him  and  the  plaintiff.  The  principle 
being,  ex  dolo  malo  non  oritur  actio."  Cowp.  Rep.  343.  It  has,  however,  been 
held,  that  a  partner  who  has  possessed  himself  of  the  property  of  the  firm,  cannot 
retain  it  by  merely  showing  that  in  realising  it  some  provisions  of  an  Act  of 
Parliament  has  been  violated  or  neglected,  and  the  Court  will  not  refuse  to  inter- 
fere between  importers  of  any  article  of  commerce  merely  on  proof  that  in  its 
production  or  exportation  some  fiscal  law  of  the  country  of  produce  has  been 
violated.  Sharp  v.  Taylor,  2  Ph.  841.  Partners  will  be  liable  to  third  parties, 
who  may  contract  with  them  without  a  knowledge  of  the  illegal  or  immoral 
object  of  the  partnership.  Aubert  v.  Maze,  2  Boss.  &  Pull.  371. 


CONTRACT     OP    PARTNERSHIP.  19 

In  order  then  to  regulate  the  shares  which  each  ought  to  have  in  the 
profits  of  a  partnership,  a  value  should  be  put  upon  what  each  brings  into 
it.  If  a  false  valuation  has  been  made,  and  there  has  been  allotted  to 
one  of  them  a  smaller  and  to  another  a  larger  share  than  he  ought  to 
have,  the  contract  of  partnerstip  is  inequitable.  For  example :  if  I  have 
contracted  a  partnership  with  you  in  which  what  we  have  each  contributed 
is  of  the  value  five  thousand  livres,  and  yet,  by  an  incorrect  valuation,  my 
contribution  has  been  estimated  only  at  four  thousand  livres,  and,  on  the 
contrary,  yours  has  been  valued  at  six  thousand  livres ; — if,  in  conse- 
quence, there  has  been  assigned  to  you  three  fifths  of  the  capital  and 
profits  of  the  partnership,  and  to  me  only  two  fifths,  the  contract  of  part- 
nership is  inequitable.  If  you  are  aware  of  it,  either  at  the  time  of  the 
contract,  or  since,  you  are  under  an  obligation  in  foro  conscientise  to 
make  up  to  me  the  moiety  which  I  ought  to  have  had  in  the  division  of 
the  capital  and  the  profits  of  the  partnership,  if  a  correct  valuation  had 
been  made. 

In  the  exterior  forum ;  that  is  to  say,  in  the  strict  law,  the  parties 
cannot  be  heard,  in  such  a  case,  to  complain  of  the  inequity  of  the  con- 
tract, according  to  the  principles  established  in  my  "  Treatise  on  Obliga- 
tions." (n.  34.)* 

16.  When  a  trader  enters  into  partnership  with  an  artisan,  to  which 
the  latter  brings  only  his  labour,  which  I  will  suppose  worth  a  hundred 
crowns,  and  the  trader  brings  a  sum  of  one  thousand  crowns — whether 
in  ready  money  or  stock-in-trade  *on  the  terms  of  withdrawing  it  ,-  #-  „  , 
at  the  distribution  (au  partage}  of  the  effects  of  partnership,  L 
which  is  to  lav^t  for  a  year;  in  that  case,  in  computing  what  each  has 
brought  into  the  partnership,  and  consequently,  in  fixing  what  share 
each  of  the  partners  should  have  in  the  profits,  we  ought  not  to  say  that 
the  artisan  has  contributed  the  sum  of  one  hundred  crowns,  at  which  his 
labour  is  estimated,  and  the  trader,  one  thousand  crowns,  and  that,  con- 
sequently, the  trader  should  have  for  his  share  ten-elevenths,  and  the  ar- 
tisan one-eleventh  only ;  for  the  trader  does  not  bring  the  sum  of  one 
thousand  crowns-iftto  the  partnership  ;  he  only  brings  in  the  use  thereof 
for  the  year  during  which  the  partnership  is  to  last,  and  then  he  may 
withdraw  it.  We  ought  not,  then,  to  reckon  that  the  trader  has  brought 
anything  into  the  partnership,  save  the  value  of  the  use  of  that  sum, 
which  Puffendorf  believes  ought  to  be  estimated  at  the  ordinary  interest 
of  money.  According  to  this  principle  in  the  case  supposed,  the  trader 
will  be  considered  to  have  brought  into  the  partnership  the  sum  of  one 
hundred  and  fifty  livres ;  and  he  ought,  consequently,  only  to  have  a 
third  part  of  the  profits. 

It  would  be  different  if  the  trader  had  not  reserved  the  right  of  with- 
drawing that  sum.  For  in  such  case,  as  he  would  bring  into  the  part- 
nership the  sum  itself,  and  not  merely  the  use  of  it,  it  is  clear  that  he 
ought,  in  the  case  proposed,  to  have  ten-elevenths,  as  well  of  the  capi- 
tal as  of  the  profits  of  the  partnership,  and  the  artisan  only  one-eleventh. 

*  See  vol.  i.  p.  21,  of  the  Translation  of  the  "  Treatise  on  Obligations,"  by  the 
late  Sir  W.  D.  Evans. 


20  POTHIER    ON    PARTNERSHIP. 

17.  The  principle  which  we  have  established,  that  the  contract  of  part- 
nership is  inequitable,  when  the  share  which  each  of  the  partners  is  to 
have  in  the  profits  of  the  partnership  is  not  in  proportion  to  what  they 
have  brought  into  it,  is  subject  to  two  exceptions. 

The  first  is,  when  one  of  the  partners,  knowing  at  the  time  of  the  con- 
tract that  the  other  brings  less  than  himself  into  the  partnership  is  will- 
ing, nevertheless,  in  order  to  make  a  gratuity,  to  admit  him  to  an  equal 
share  therein.  In  such  case,  it  cannot  be  said  that  there  is  a  want  of 
equity  in  the  contract :  because  volenti  non  fit  injuria:  but  the  contract 
is  not,  in  that  case,  purely  and  entirely  a  contract  of  partnership  ;  it  is 
r  *in  partly  a  donation.  Nevertheless,  it  is  not  the  less  *valid.  It  is 
-I  true,  that  if  the  contract  was  only  made  in  order  to  confer  a  gra- 
tuity upon  one  of  the  contracting  parties,  who  had  contributed  nothing, 
it  would  not  be  a  contract  of  partnership  :  and  it  is  in  that  sense  that 
Ulpian  says  :  "  Donationis  causa  societas  non  recte  contrahitur ;  1.  5. 
B.  2.  ff.  Pro.  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  5,  §  2.) 

But  although  a  person  may,  by  the  contract,  in  some  particular,  have 
conferred  a  gratuity  upon  one  of  the  parties,  nevertheless,  it  does  not  cease 
to  be  a  true  partnership  contract,  and  will  be  valid,  provided  the  partner 
to  whom  I  have  given  an  advantage  is  not  a  person  to  whom  the  law  for- 
bids me  to  make  a  gift;  in  the  same  manner  as  a  contract  of  sale,  which 
would  not  be  a  true  contract  of  sale,  if  there  were  no  (prix  serieux) 
valuable  consideration  for  it,  does  not  cease  to  be  a  true  contract  of  sale, 
although  the  seller,  in  order  to  confer  a  gratuity  upon  the  purchaser, 
sells  at  a  price  below  the  real  value,  provided  that  such  purchaser  is  not 
a  person  to  whom  it  is  forbidden  to  make  a  gift.4  L.  38,  ff.  De  Contr. 
Ernpt.  Dig.  lib.  xviii.  tit.  1,  1.  38. 

18.  The  second  exception  is,  that  there  may  be  assigned  by  the  con- 
tract to  one  of  the  partners  a  greater  share  in  the  profits  than  what  he 
has  contributed  to  the  partnership,  without  the  contract  containing,  on 
that  account,  anything  inequitable,  or  even  any  gratuity,  when  that  part- 
ner compensates  for  the  advantage  by  an  equivalent  which  he,  on  his  part, 
has  conferred  upon  the  other  partner. 

The  following  case  may  be  given  as  an  example.  Two  coopers  enter 
into  partnership  together  for  the  manufacturing  and  sale  of  casks;  each 
of  them  contributing  to  the  partnership  his  labour,  and  half  the  capital 
of  which  it  is  to  be  composed.  One  of  them,  depending  upon  his  ability 
as  a  judge  of  wood,  after  having  examined  what  they  are  about  to  employ, 
takes  upon  himself,  by  the  contract  of  partnership,  the  sole  charge  of  the 
warranty  (du  vice  defut}  against  defects  in  the  casks,  for  which  coopers 
are  liable,  to  those  who  purchase  their  casks ;  and  they  agree,  that  in 
_.  -  _  ..  consequence  *of  his  having  charged  himself  alone  with  that  war- 
-I  ranty,  and  of  his  having  bound  himself  to  indemnify  the  partner- 
ship therefrom,  he  shall  have  three-fourths  of  the  profits,  if  there  are  any  : 
and  that,  nevertheless,  in  case  of  loss,  he  shall  only  bear  a  moiety. 

This  agreement  is  valid;  for  such  part  of  the  profits,  which  is  assigned 

*  See  Pothier's  "  Treatise  on  the  Contract  of  Sale,"  n  21,  translated  by  L.  S. 
Cashing.     Little  and  Brown,  Boston,  U.  S.    1839. 


CONTRACT    OF     PARTNERSHIP.  21 

to  him,  over  and  above  the  moiety,  is  a  recompense  for  the  benefit  which 
he  has  conferred  upon  his  partner  by  discharging  him  from  the  risk  of 
the  warranty,  to  a  moiety  of  which  he  would  have  been  liable.  It  is  the 
price  of  the  moiety  of  the  risk  from  which  he  discharges  him.  An  infi- 
nity of  other  examples  may  be  imagined. 

SECOND   RULE. 

Generally,  each  of  the  partners  ought  to  bear  the  same  proportion  of 
the  losses  of  the  partnership,  as  he  ought  to  have  of  its  profits,  in  case  it 
is  prosperous. 

19.  There  is  an  exception  to  this  rule  in  the  case,  where  one  of  the 
partners,  to  whom  there  .has  been  assigned  a  share  in  the  profits  in  pro- 
portion only  to  what  he  has  contributed  to  the  partnership  in  money  or 
stock-in-trade,  has  also  brought  to  it   his  skill  and  industry.     It  might, 
in  that  case,  be  equitably  agreed  that  he  shall  bear  a  smaller,  or  even  no 
share  of  the  loss,  provided  the  value  of  his  skill  and  industry  be  equal 
to  the  risk  of  the  loss  from  which  he  is  discharged.     Ita  coiri  societatem 
posse,  ut  nullius  partem  damni  alter  sentiat,  lucrum  verb  commune  sit 

Cassius  scriLit ;  quod  ita  demiim  valebit,  si  tanti  sit  opera,  quanti  dam- 
num  est.  L.  29,  §  1,  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2 ;  1.  29,  §  1.) 

20.  In  general,  whenever  one  of  the  partners  (en  son  particulier}  per- 
sonally brings  any  advantage  to  the  partnership,  in  order  to  recompense 
him,  it  may  be  agreed  that  he  shall  *be  discharged,  either  partially  r  .  lfi  -, 
or  entirely,  from  the  loss  which  the  partnership  may  sustain.  L 

For  example,  if,  in  the  cooperage  trade,  one  of  the  partners  charges  him- 
self alone  with  the  warranty  (du  -vice  defut)  against  defects  of  the  casks, 
and  binds  himself  to  indemnify  the  partnership  therefrom,  in  order  to  re- 
compense him  for  the  advantage  which  he  has  conferred  upon  the  part- 
nership, it  may  be  agreed,  although  he  is  a  partner  as  to  one-half,  and  is 
to  receive  one-half  of  the  profits,  if  there  are  any,  that  nevertheless,  in 
case  of  loss,  he  shall  bear  only  a  smaller  share, — for  instance,  one-third 
or  one-fourth  only. 

This  agreement  is  equitable,  if  the  share  of  the  risk  of  loss  from  which 
he  is  discharged,  is  equivalent  in  value  to  the  share  of  the  risk  of  the 
warranty  from  which  he  has  discharged  his  partner. 

21.  "What  has  been  said,  that  it  may  be  agreed,  without  acting  inequi- 
tably, that  one  of  the  partners  shall  bear  a  smaller,  or  even  not  bear  any, 
share  in  the  losses,  ought  not  to  be  understood  in  this  sense,  that  such 
partner  shall  have  a  share  in  the  profit  of  every  transaction  which  shall 

20  A  stipulation  that  one  of  the  partners  shall  not  be  liable  to  loss,  is  in  our  law 
valid,  as  between  the  parties  themselves  (Fereday  v.  Hordern,  Jac.  144 ;  Gilpin  v. 
Enderby,  5  B.  &  A.  954  ;  Bond  v.  Pittard,  3  M.  &  W.  357) ;  unless  it  were  intended 
as  a  mere  disguise  of  usury  (Jestons  v.  Brooke,  Cowp.  793  ;  Morse  v.  Wilson,  4  T. 
R.  353)  ;  but  it  will  not  render  him  less  liable  to  third  parties.  Waugh  v.  Carver, 
2  H.  Bl.  235;  1  Smith's  Lead.  Gas.  491 ;  Fereday  v.  Hordern,  Jac.  147. 

11 A  stipulation  which  would  set  free  from  all  contributions  to  losses,  sums  or 
effects  put  into  the  capital  of  the  partnership  by  one  or  more  of  the  partners,  is 
void.  Civ.  Code  of  France,  art.  1855.  See  Bond  v.  Pittard,  3  Mees.  &  Wels.  357. 
359,  360  ;  Gilpin  v.  Enderby,  5  Barn.  &  Aid.  954;  Fereday  v.  Hordern,  Jac.  144. 


22  POTHIER    ON    PARTNERS  HI  P. 

have  been  advantageous  to  the  partnership,  without  sustaining  any  of  the 
losses  that  the  partnership  has  incurred  in  those  which  have  been  disad- 
vantageous, for  that  would  be  manifestly  unjust :  but  it  is  to  be  under- 
stood in  this  sense,  that  after  the  dissolution  of  the  partnership,  an  ac- 
count shall  be  taken  of  all  the  gains  that  the  partnership  has  made,  and 
an  account  of  all  the  losses  that  it  has  incurred  in  all  the  different  trans- 
actions in  which  it  has  been  engaged ;  and  that  if  the  total  of  the  profits 
exceeds  the  total  of  the  losses,  that  partner  shall  take  his  share  of  the 
surplus;  and  that  if,  on  the  contrary,  the  total  of  the  losses  exceeds 
that  of  the  profits,  he  shall  have  neither  profit  nor  loss  :  Neque  enim  lit- 
crum  intelligitur,  nisi  omni  damno  deducto  ;  neque  damnum,  nisi  omni 
luc.ro  deducto  ;  L.  80,  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2.  1.  30.) 

[  *17  ]  §  V.    Of  Fictitious  Contracts  of  Partnership. 

22.  When  it  appears  that  a  contract  of  partnership  is  fictitious,  and 

B  So  according  to  our  law,  a  pretended  contract  of  partnership  entered  into 
with  the  mere  intention  of  obtaining  a  usurious  interest  for  a  loan  of  money,  will 
be  null  and  void,  as  "there  is  no  contrivance  whatever,"  to  use  the  words  of 
Lord  Mansfield,  "by  which  a  man  can  cover  usury."  See  Jestons  v.  Brooke,  Cowp. 
793  ;  Morse  v.  Wilson,  4  T.  R.  353  ;  Coll.  Partn.  38. 

It  must,  however,  be  remembered  now  that  bills  of  exchange,  and  loans  of 
money  above  10Z.  not  being  upon  the  security  of  lands,  tenements,  or  heredita- 
ments, or  any  estate  or  interest  therein,  are  not  affected  by  the  usury  laws  :  see 
2  &  3  Viet.,  c.  37,  continued  by  8  &  9  Viet.  c.  102,  and  by  subsequent  enactments. 
However,  even  previous  to  the  passing  of  these  Acts,  although  the  return  of  the 
capital  and  profits  beyond  the  legal  rate  of  interest  might  have  been  secured  to 
one  of  the  parties,  if  the  contract  of  partnership  did  not  appear  to  be  fictitious, 
or  to  have  been  used  as  a  mere  shift  to  cover  usury,  it  would  be  valid,  because 
the  principal  advanced,  would,  although  secured  at  all  events  to  be  repaid  by  the 
other  partner,  be  hazarded  by  being  liable  to  the  demands  of  third  parties.  Thus, 
in  Gilpin  v.  Enderby,  1  D.  &  E.  570,  5  B.  &  Aid.  954.  Enderby  being  established 
in  trade  and  wishing  to  increase  his  capital,  entered  into  a  contract  of  partnership 
for  ten  years  with  Gilpin,  who  advanced  20,000£.,  upon  a  covenant  that  he  should 
receive  2000Z.  per  annum,  during  the  partnership,  out  of  the  profits,  if  there  were 
any,  and  if  none,  out  of  the  capital;  that  he  should  not  be  answerable  for  any 
losses  or  expenses  incident  to  the  concern,  and  that  the  business  should  be  car- 
ried on  in  the  name  of  Enderby  only ;  that  at  the  end  of  the  ten  years,  if  the 
partnership  determined  by  efflux  of  time,  he  should  be  repaid  the  20,OOOZ.  by 
instalments  at  three  months'  date  bearing  legal  interest ;  and  that  if  default  was 
made  in  the  annual  payment  of  2000Z.,  or  the  joint  capital  was  at  any  time  reduced 
to  20,OOOZ.,  then  he  should  be  at  liberty  to  terminate  the  partnership  and  repay 
himself  the  20,OOOZ.  advanced,  immediately.  Gilpin  brought  an  action  of  coven- 
ant and  recovered  damages  for  the  nonpayment  of  the  20,OOOZ.  at  the  end  of  the 
ten  years,  the  jury  expressly  negativing  usury ;  upon  a  writ  of  error  it  was  held, 
affirming  the  judgment,  that  upon  the  face  of  the  deed,  Enderby  and  Gilpin  were 
partners,  and  that  there  was  no  loan  of  money  within  the  meaning  of  the  statute 
of  usury.  The  law  upon  the  subject  is  well  stated  by  Lord  Tenterden,  C.  J.,  in 
his  judgment.  "  By  the  execution  of  the  deed,"  said  his  lordship,  "  Enderby 
undoubtedly  made  himself  liable  as  a  partner  to  all  the  partnership  creditors, 
though  he  might  not  be  liable  as  between  Gilpin  and  himself;  and  if  the  deed 
discloses  the  real  facts,  and  the  ;eal  intentions  of  the  parties  to  it,  this  is  not 
a  case  of  a  loan  of  moiey  from  Enderby  to  Gilpin,  but  a  contract  of  partnership 
between  them,  of  a  peculiar  kind  certainly.  If  the  deed  does  not  disclose  the 
real  facts  aad  intent'ons  of  the  parties,  but  was  executed  only  as  a  contrivance 
to  cover  a  loan  of  20,OOOZ.  for  ten  years,  at  101.  per  cent,  interest,  then  undoubtedly 
it  is  void.  This  is  a  fact,  however,  which  ought  to  have  been  found  as  such  affir- 


CONTRACT    OF     PARTNERSHIP.  23 

that  it  has  only  been  entered  into  for  the  purpose  of  disguising  a 
usurious  loan  of  Money,  it  is  clear  that  the  contract  ought  to  he  declared 
void,  and  that  whatever  has  been  received  by  the  pretended  partner,  in 
the  place  of  his  share  in  the  profits  of  the  pretended  partnership,  ought 
to  be  (impute  sur\  reckoned  against  the  principal  sum  which  he  has  put 
therein,  and  that  the  sum  which  he  has  received  diminishes  (de  plein 
droit}  of  full  right  that  which  ought  to  be  restored  to  him. 

*This  ought  to  be  sufficient  to  determine  the  question  of  the  r  *io  -i 
legality  of  a  celebrated  agreement*  supposed,    by  the  casuists,  *- 
which  contains  three  contracts. 

First.  A  contract  of  partnership  which  I  enter  into  with  a  merchant, 
who,  having  already  capital,  suppose  thirty  thousand  livres,  takes  me 
into  partnership  for  a  fourth  of  his  business,  (a  raison\  in  consideration 
of  a  sum  of  ten  thousand  livres  which  I  bring  into  the  partnership. 

Secondly.  A  contract  of  assurance,  by  which  the  same  merchant 
guarantees  me  my  capital  of  ten  thousand  livres,  which  I  put  into  the 
partnership,  and  which  he  binds  himself  to  restore  to  me  on  its  termina- 
tion, upon  condition  that  on  my  part  I  yield  to  him  a  certain  portion  of 
the  profits  I  have  a  reason  to  expect  for  my  share  in  the  partnership ;  for 
example,  if  I  expect  that  my  share  in  the  partnership  will  produce  yearly 
a  profit  of  about  twelve  per  cent.,  more  or  less,  I  give  up  to  him  half  of 
it. 

Moreover,  a  third  contract,  by  which  I  sell  to  the  same  merchant  my 
capital  in  the  partnership  thus  guaranteed,  and  all  the  gains  I  expect  from 
it  (inoyennant  le  paix\  in  *consideration  of  a  sum  of  ten  thou-  .-  ^-fq-j 
sand  livres,  which  he  binds  himself  to  pay  to  me  at  the  termina-  L 
tion  of  the  partnership,  with  five  hundred  livres  for  interest  yearly  until 
the  time  of  repayment.  Diana,f  after  having  supposed  this  agreement, 
proposes  the  question,  whether  it  be  lawful.  He  decides  in  the  affirma- 
tive. His  reason  is,  that  these  three  contracts,  considered  separately, 
being  lawful,  they  cannot  be  the  less  so,  although  united  by  the  same 
agreement.  It  is  not  necessary,  for  the  purpose  of  refuting  this  decision 
of  Diana,  to  accumulate  all  the  authorities  which  the  author  of  the 
"  Conferences  of  Paris"  has  collected. 

It  needs  no  great  acuteness  to  perceive  that  such  agreement  in  truth 
is  nothing  else  than  a  loan  of  ten  thousand  livres  at  interest  made  by 

matively  by  the  jury,  in  order  to  have  enabled  the  Court  to  pronounce  an  opinion 
thereupon.  But  as  such  fact  has  not  been  found,  and  in  the  absence  of  such 
finding  we  must  consider  the  deed  as  speaking  the  real  language  of  the  parties, 
and  so  considering  it,  we  cannot  pronounce  it  void.  The  partnership  as  constituted 
by  this  deed,  may  be  probably  of  an  unusual  kind,  but  that  circumstance  will  not 
authorise  us  to  say  that  there  was  no  partnership,  and  that  this  was  simply  a 
loan  of  money."  See  alsoMorisset  v.  King,  2  Burr.  891 ;  Fereday  v.  Hordern,  Jac. 
144,  and  see  Armstrong  v.  Lewis,  2  Cromp.  &  M.  274;  see,  however,  Brophy  v. 
Holmes,  2  Moll.  1. 

*  It  must  be  borne  in  mind  that,  at  the  time  when  Pothier  wrote,  all  loans  of 
money  at  interest  were  held  to  be  usurious,  partly  because  money  was  considered 
to  be  in  itself  an  unproductive  commodity,  but  principally  because  ecclesiastics 
thought  that  the  lending  of  money  at  interest  was  forbidden  by  Holy  "Writ.  See 
also  1  Domat.  book  i.  tit.  6. 

f  See  Troplong's  "  Droit  Civil  explique  Contrat  de  Socie'te',"  vol.  i.  p.  61  ; 
who  attributes  the  origin  of  this  celebrated  agreement  to  the  Oriental  clergy. 


24  POTHIER    ON     PARTNERSHIP. 

me  to  that  merchant,  which  ought,  according  to  strict  law  (dans  le  for 
exterieur^  as  well  as  in  foro  conscientise,  to  be  declared  usurious;  and, 
consequently,  the  interest  ought  to  be  reckoned  against  the  principal. 
It  is  very  clear,  that  the  three  pretended  contracts,  comprised  in  the 
agreement,  are  only  feigned  in  order  to  disguise  a  loan  at  interest,  and 
that,  in  truth,  I  had  no  intention  of  entering  into  partnership  with  the 
merchant,  but  only  of  getting  from  him  interest  on  the  sum  which  I 
lent.  And  even  if,  by  a  misconception,  I  should  have  persuaded  myself 
that  I  had  really  the  intention  of  entering  into  three  successive  contracts 
with  him,  this  would  be  an  illusion  produced  by  my  cupidity,  in  order  to 
disguise  from  myself  the  vice  of  usury  in  the  loan  at  interest  to  which 
the  whole  of  the  agreement  resolves  itself. 

In  general,  whenever  a  private  person  makes  a  pretended  contract  of 
partnership  with  a  trader,  who  takes  him  as  partner  into  his  business 
for  a  certain  sum  of  money,  which  he  brings  to  that  trader,  who  binds 
himself  to  restore  it  to  him  at  the  end  of  the  partnership,  without  that 
person  bearing  any  share  of  the  loss,  if  the  partnership  does  not  succeed; 
and  on  the  terms  that  he  shall  have  a  certain  share  of  the  gain,  however 
r  *on  -]  moderate  that  share  of  the  gain  may  be,  in  consequence  *of  his 
J  not  bearing  any  part  of  the  loss,  and  whether  that  share  is 
(assuree)  guaranteed  to  amount  to  a  certain  sum  yearly,  or  whether  it 
be  not  so,  such  a  contract  ought  to  be  considered  a  contract  of  a  fictitious 
partnership,  which  has  only  been  entered  into  to  disguise  a  usurious 
loan  which  that  private  person  wished  to  make  to  the  trader  of  the  sum 
of  money  which  he  had  put  in  his  hands.  The  trader  who  by  this  pre- 
tended contract  of  partnership  does  not  discharge  himself  from  any  part 
of  the  risk  of  losses  which  may  happen  in  his  business,  has  no  intention 
of  entering  into  a  contract  of  partnership ;  he  has  no  other  intention  than 
that  of  borrowing  the  sum  that  such  person  puts  in  his  hand  ;  and  the 
share  that  he  gives  him  in  the  profits  of  the  partnership  is  instead  of 
the  interest  which  that  person  requires  for  the  loan.  That  person,  in 
like  manner,  has  no  other  intention  than  to  draw  an  illegal  profit  from 
the  loan  of  that  sum  of  money,  which  it  ought  not  to  produce,  by  dis- 
guising the  loan  as  a  contract  of  partnership. 

23.  The  decision  will  be  otherwise  in  the  case  where  a  trader  who 
has  a  good  business,  of  which  the  capital  is  forty  thousand  livres,  enters 
into  a  contract  of  partnership  with  a  private  person,  who  also  brings  in 
a  capital  of  forty  thousand  livres,  with  a  clause  that  such  person  should, 
in  consideration  of  this  taking  upon  himself  all  losses,  have  three-fourth, 
of  the  profits,  instead  of  the  moiety  which  he  ought  only  to  have.  This 
contract  is  a  true  contract  of  partnership.  The  clause  by  which  the 
trader  discharges  himself  from  risk  of  loss,  at  the  expense  of  his  partner, 
is  not  at  all  inequitable,  provided  the  expectation  of  gain  being  at  least 
in  double  ratio  to  the  risk  of  loss,  the  value  of  the  expectation  of  the 
fourth  of  the  profits,  which  the  former  gives  up,  is  equivalent  to  the 
value  of  the  risk  of  his  moiety  of  the  loss  with  which  he  charges  his 
partner.  The  capital,  which  the  trader  has  put  into  the  partnership, 
being  a  productive  thing,  he  can  retain  a  part  of  the  gain,  although  the 


CONTRACT    OF    PARTNERSHIP.  25 

other  partner  assures  to  him  the  capital,  and  frees  him  from  the  risk  of 
loss. 

24.  If  the  private  person,  who  has  entered  into  a  contract  of  partner- 
ship with  a  trader,  to  which  he  has  brought  a  certain  sum  of  money,  in 
order  to  have  a  share  as  well  in  the  capital  as  in  the  profits  or  loss  of  the 
partnership,  on  account  of  that  *sum, — makes,   at  a  time  not  p  ^-1  -i 
liable  to  suspicion,  after  some   years,  an  agreement  with  that  L 
trader,  by  which  he  sells  to  him  his  right  in  the  partnership  for  the  same 
sum  which  he  brought  into  the  partnership  which  the  trader  binds  him- 
self to  repay  at  the  time  fixed  for  its  termination,  with  a  certain  interest 
yearly — is  such  an  agreement  which  would  not  have  been  valid  if  it  had 
been  made  at  the  time  of  the  contract,  and  which  would  then  have  passed 
for  a  loan,  at  interest,  disguised  as  a  false  contract  of  partnership, — is  it 
binding,  having  been  ma'de  at  the  end  of  several  years?     I  think  that  it 
is  valid,  both  inforo  conscientias,  in  strict  law  (for  exterieur).     It  is  valid 
in  foro  conscientise,  provided  it  be  a  new  agreement,  and  that  the  contract 
of  partnership  were  not  made  upon  a  secret  compact,  that  the  trader 
would  purchase  from  such  person  his  share  of  the  partnership.     It  is 
equally  binding  in  strict  law  (for  exterieur),  because  the  length  of  time 
which  has  elapsed  between  the  contract  of  partnership  and  the  agreement 
renders  it  impossible  to  suspect  that  such  contract  was  not  a  true  contract 
of  partnership,  or  that  it  was  made  with  that  secret  compact. 

But  there  having  been  a  true  contract  of  partnership  between  the  par- 
ties, the  private  person  having,  by  such  contract,  acquired  a  share  in  the 
capital  of  the  business,  which  constitutes  the  capital  of  the  partnership, 
and  the  capital  of  the  business  being  productive,  he  can  sell  to  his  co- 
partner his  share  in  the  capital  of  the  business,  and  take  interest  for  the 
price  at  which  he  has  sold  it. 

25.  The  same  decision  must  be  given  with  respect  to  a  contract  of  as- 
surance, by  which  that  private  person,  at  the  end  of  some  years,  causes 
what  he  brought  into  the  partnership  to  be  guaranteed  to  him  by  the  tra- 
der his  co-partner,  who,  undertakes  to  bear  at  his  own  cost  all  the  loss 
which  may  happen  to  the  partnership,  if  unsuccessful,  in  consideration  of 
such  person  giving  up  to  the  trader  a  part  of  his  share  of  the  expected 
profits.     This  contract,  as  well  as  the  former,  is  quite  lawful,  provided 
the  value  of  the  expected  profits,  which  such  person  gives  up  to  the  tra- 
der, be  equal  to  the  value  of  the  risk  of  loss  with  which  he  is  charged. 

Nevertheless,  the  author  of  the  Conferences,  vol.  ii.  p.  70,  r  ^  -. 
*asserts  that  a  person  cannot  legally  make  this  contract  of  assu-  L 
ranee  with  his  co-partner,  although  he  allows,  p.  71,  that  he  can,  with  a 
third  party.  He  gives  a  very  bad  reason  for  this  j  viz.,  that  such  con- 
tract of  assurance  destroys,  in  his  opinion,  the  contract  of  partnership. 
This  is  incorrect,  for  we  have  seen  above  (n.  19,)  a  contract  of  partner- 
ship may  be  valid,  although  one  of  the  partners  is  not  to  bear  any  share 
of  the  loss  (which  is,  indeed,  an  assurance  of  what  he  has  brought  there- 
to,) provided  that  he  has  given  to  his  co-partners,  who  have  charged 
themselves  with  the  risk  of  loss  which  he  might  incur  therefrom,  an 
equivalent  to  the  price  of  that  risk. 

26.  The  author  of  the  Conferences,  in  the  same  place  where  he  con- 


26  POTHIEE    ON    PARTNERSHIP. 

demns  the  contract  of  assurance  by  which  one  of  the  partners  causes 
what  he  has  brought  into  the  partnership  to  be  guaranteed  by  another 
partner,  condemns  also  another  agreement,  by  which  one  of  the  partners, 
without  causing  what  he  has  brought  into  the  partnership  to  be  guaran- 
teed, and  remaining  subject  to  loss  as  to  his  share,  if  the  partnership  be 
unsuccessful,  sells  his  share  in  the  expected  profits  for  a  certain  sum.  I 
see  nothing  wrong  in  this  agreement.  The  expectation  of  profits  from  a 
partnership  is  appreciable,  as  is  the  bawl  or  take  of  a  net  j  and  I  can 
consequently  sell  it,  either  to  my  partner  or  to  a  third  party,  in  the  same 
manner  as  one  may  sell  the  take  of  a  net. 

The  reasons  of  the  author  of  the  Conferences  are,  that  according  to  his 
opinion,  the  contract  of  sale,  which  I  enter  into  with  my  partner,  of  the 
uncertain  profits  which  I  expect  from  the  partnership,  "is  contrary  to 
the  equality  which  ought  to  be  found  in  partnerships."  He  should  have 
said  "in  contracts;"  for  here  the  question  is  not  about  a  contract  of  part- 
nership. The  contract  now  in  question,  although  it  may  be  entered  into 
between  partners,  is  not  a  partnership  contract.  It  is  a  contract  of  sale 
that  I  enter  into  with  my  partner,  as  I  could  with  any  other  person,  of 
my  share  of  the  expected  profits  of  the  partnership.  Nevertheless,  I 
agree  that  equality  should  be  found  in  this  contract :  and  it  is  to  be  found 
there;  because  the  share  which  I  have  in  the  uncertain  expectation  of 
the  profits  of  the  partnership  being  something  appreciable,  it  suffices,  in 
f  *93  1  or<^er  *bat  equality  should  *be  found  in  the  contract,  that  what 
-I  is  given  to  me  thereby  for  the  price  of  the  expectancy  which  I 
sell,  should  be  the  just  price  of  that  expectancy. 

The  author  of  the  Conferences  adds : — "  That  a  contract  of  sale 
assures  a  certain  profit  to  one  partner;  but  between  partners  there  ought 
not  to  be  any  certain  profit,  every  thing  ought  to  be  uncertain,  as  well 
the  capital  as  the  profits."  If  the  author  means,  by  this,  that  the  share 
of  the  uncertain  expectation  of  profits  cannot  be  given  up  in  considera- 
tion of  a  certain  sum,  it  is  to  assume  precisely  the  point  in  question ; 
that  is,  only  a  petitio  principii  and  bad  reasoning. 

27.  If  the  person  who  has  brought  to  a  trader  a  sum  of  money,  in 
order  to  be  in  partnership  with  him  in  his  business,  had  made  these 
contracts  of  sale  or  assurance  of  his  share  shortly  after  the  contract  of 
partnership,  there  would  have  been  grounds  for  the  presumption  that 
they  were  only  in  execution  of  a  secret  compact  added  to  the  contract  of 
partnership ;  and,  consequently,  in  strict  law  (for  exterieur,}  these  con- 
tracts, as  well  as  the  contract  of  partnership,  ought  to  be  declared  void 
and  fictitious,  as  being  entered  into  for  the  purpose  only  of  disguising  a 
usurious  loan  of  the  sum  of  money  brought  by  such  person  to  the 
trader. 


DIFFERENT    KINDS    OF    PARTNERSHIPS.  27 

SECOND    CHAPTER. 

Of  the  different  Kinds  of  Partnerships? 
Partnerships  are  either  Universal  or  Particular. 

SECTION  I. 

Of  Universal  Partnerships. 

28.  THE  Roman  law  draws  a  distinction  between  two  kinds  of  part- 
nerships, one  of  which  is  called  universorum  bonorum,  *the  other  r  ^ ,  -. 
universorum  quse  ex  gusestu  veniunt.   In  our  French  law,  besides  L 
these  two  kinds  of  partnerships,  the  conjugal  community  which  is  con- 
tracted between  husband  and  wife,  and  that  which  is  continued  between 
the  survivor  of  them  and  the  heirs  of  the  deceased,  are  universal  partner- 
ships of  a  different  kind,  and  governed  by  peculiar  principles ;  they  will 
be  treated  of  at  length  in  my  Treatise  on  the  "  Contract  of  Marriage," 
as  well  as  the  agreements  which  usually  accompany  them. 

First  Articl e. —  On  the  Partnership  universorum  bonorum. 

§  I.    What  it  is.      When  it  is  to  be  considered  as  contracted^  and 
between  what  Persons  it  can  be  contracted. 

29.  The  partnership  universorum  bonorum  is  that  by  which  the  con- 
tracting parties  agree  to  put  in  common  all  their  property,  both  present 
and  future. 

23  Partnerships  are  universal  or  particular.     Civ.  Cod.  of  France,  1835. 
Different  Kinds  of  Partnerships. 

There  are  two  kinds  of  universal  partnerships,  a  partnership  of  all  present  pro- 
perty, and  a  universal  partnership  of  profits.  Civ.  Cod.  of  France,  1836. 

Universal  partnerships  in  feudal  times  were  very  numerous  in  France,  espe- 
cially for  agricultural  purposes  ;  hence  they  were  often  called  Rustic  Partnerships. 
Troplong  attributes  their  use  to  two  causes  ;  one  civil,  namely,  that  as  on  the 
death  of  a  serf,  according  to  the  maxim  of  the  feudal  law,  "mors  omnia  solvit,"  the 
lord  became  possessed  of  all  his  property  ;  a  family  by  living  together  and  uniting 
its  labours,  revenues,  gains,  and  acquisitions,  became  as  it  were  a  corporate  body 
possessing  its  patrimony,  notwithstanding  the  death  of  individuals,  by  a  species  of 
survivorship.  Another  reason  of  an  economical  and  political  nature,  was  the 
interest  of  the  lord  that  his  lands  should  be  better  cultivated;  and  that  all  confu- 
sion of  dividing  the  land  into  small  portions  should  be  avoided.  Universal  part- 
nerships were  also  sometimes  contracted  between  roturiers  and  sometimes  even 
nobles.  At  present  partnerships  of  this  nature  are  rare,  the  necessities  which 
gave  rise  to  them  having  in  a  great  measure  ceased  to  exist.  Troplong  "  Contrat 
de  Societe,"  vol.  i.  pref.  p.  xxxviii.  and  p.  244 — 249. 

29  A  partnership  of  all  present  property,  is  that  by  which  the  parties  put  in  com- 
mon all  the  property  moveable  or  immoveable  which  they  actually  possess  and 
the  profits  which  they  may  derive  therefrom. 

They  may  also  comprehend  therein  every  other  kind  of  profits ;  but  the  pro- 


28  POTHIER    ON    PARTNERSHIP. 

.-  jj- _  _.  *  Partners  are  not  considered,  in  the  absence  of  express  con- 
J  tract,  to  have  entered  into  this  kind  of  partnership :  1.  7,  ff.  Pro 
Soc.  (Dig.  Lib.  xvii.  tit.  2,  s.  7.) 

30.  This  partnership  may  be  entered  into  by  persons,  although  one  be 
richer  than  the  other  :  Hcec  societas  co'iri  potest  et  valet  etiam  inter  eos  qui 
non  sunt  sequis  facultatibus. 

The  reason  which  Ulpian  gives  for  this  is,  that  the  industry  of  the 
one  who  is  poor  may  be  equivalent  to  the  greater  property  of  the  other, 
cum  plerumque  pauperior  opera  suppleat  quantum  eiper  comparationem 
patrimonii  deest;  Diet.  1.  5,  §  1,  (Dig.  Lib.  xvii.  tit.  11,  s.  5,  §  1.) 

Even  when  that  reason  is  inapplicable,  and  the  partner  who  has  less  pro- 
perty is  also  less  industrious,  the  partnership  is  none  the  less  valid.  For 
the  only  consequence  of  such  inequality  is,  that  the  Contract  of  Partnership 
is  partly  a  donation,  the  richer  partner  having  wished  to  confer  a  gratuity 
upon  the  poorer.  But,  although  a  Contract  of  Partnership  is  partly  a 
donation,  it  is  not  on  that  account,  as  we  have  already  seen,  less  valid : 
n.  17. 

§  II.  How  the  property  of  the  Partners  is  communicated  or  rendered 

common. 

It  is  peculiar  to  this  kind  of  partnership,  that  all  the  property  of  each 
of  the  partners  at  the  time  of  the  contract  becomes  from  that  instant 
common  between  them,  each  of  them  being  considered  to  have  made  re- 
ciprocally a  feigned  delivery,  and  to  be  constituted  possessors  thereof  in 
the  name  of  the  partnership  :  In  societate  ominum  bonorum  omnes  res  quae 
coeuntium  sunt  continue  communicantur  ;  quia  licet  specialiter  traditio 
non  interveniat,  tacite  tamen  creditur  interveniere :  1. 1,  §  1,  1.  2,  ff.  Pro 
^00*0'  Pig-Lib,  xvii.  tit.  2;  sec.  1,  §  1,  *sec.2.)  This  neverthe- 
less,  according  to  the  Roman  law,  did  not  take  place  with  respect 
to  (defies  actives}  active  debts,  (i.  e.  debts  owing  to  the  parties)  which 
by  their  nature  are  not  capable  of  delivery,  and  which  cannot  pass  from 
one  person  to  another  except  by  a  cession  of  the  right  of  action ;  but 
when  required,  each  of  the  partners  is  bound  to  make  that  cession. 
Therefore  it  is  that  Paulus  adds,  Ea  verb  quse  in  nominibus  erunt^  mancnt 
in  suo  statu,  sed  actiones  invicem  prsestare  debent :  1.  3.  (Dig.  Lib.  xvii. 
tit.  2,  sec.  3.)  la  our  French  law,  where  we  more  readily  supply  and 
presume  these  cessions  of  rights  of  action,  I  think  that  debts,  owing  to 

perty  which  may  come  to  them  by  succession,  donation,  or  legacy  does  not  enter 
into  such  partnership,  except  for  enjoyment.  Every  stipulation  tending  to  make 
the  ownership  of  such  property  enter  therein  is  prohibited  except  between  hus- 
band and  wife,  and  conformably  to  all  that  is  ordained  with  regard  to  them.  Civ. 
Cod.  of  France,  1837. 

The  universal  partnership  omnium  bonorum  of  the  old  French  law,  it  will  be 
observed,  however  well  adapted  to  the  Middle  Ages,  must  in  later  times  have 
been  the  source  of  much  fraud  and  litigation,  and  it  has  been  considerably  modi- 
fied. Thus,  though  the  Code  comprehends,  as  in  the  old  law,  all  the  existing  pro- 
perty of  the  partners,  it  does  not  extend  to  property  to  be  acquired  by  succession, 
donation  or  legacy,  and  every  stipulation  by  which  an  attempt  is  made  to  bring 
them  into  such  partnership  is  void.  See  Troplong,  "  Droit  Civil  Explique"  Con- 
trat  de  Socie"te,"  vol.  i.  pref.  xxxv.  and  p.  244. 


DIFFERENT    KINDS    OF    PARTNERSHIPS.  29 

parties  who  enter  into  a  partnership  of  this  kind,  at  once  fall,  as  well  as 
their  other  property,  into  the  partnership,  without  there  being  any  ne- 
cessity for  an  express  cession  of  the  rights  of  action. 

32.  By  the  Roman  law,  whatever  one  of  the  partners  acquired  in  his 
own  name  after  the  Contract  of  Partnership  was  not  acquired  (de  plein 
droit}  of  full  right  for  the  partnership,  the  other  had   only  a  right  of 
action  to  compel  him  to  bring  it  therein  :    Si  quis  societatem  contraxerit, 
quod  em  it  ipsius  fit,  non  commune  ;  sed  societatis  judicio  cogituo  rem 
communicare:  1.  74.  ff.  Pro.  Soc.  (Dig.  Lib.  xvii.  tit.  2,  sec.  74.)     The 
reason  was,  that  the  feigned  delivery,  which  was   considered  to  have 
taken  place  in  the  Contract  of  Partnership,  by  which  each  of  the  partners 
was  considered  to  constitute  himself  possessor  in  the  name  of  the  partner- 
ship, could  only  take  place  with  respect  to  the  property  which  he  actually 
had  at  that  time,  he  not  being  able  to  constitute  himself  possessor  of  that 
which  he  as  yet  had  not. 

In  our  French  law,  which  is  not  so  (litteraT)  strict  as  the  Roman  law, 
I  think  that  a  partner  omnium  bonorum,  who  by  the  contract  of  that 
kind  of  partnership  is  obliged  to  make  all  acquisitions  on  the  partnership 
account,  ought  to  be  readily  presumed  to  have  intended  to  make  such 
acquisition  in  the  name  and  on  account  of  the  partnership,  although  he 
may  not  have  expressed  it  to  be  so ;  and,  consequently,  to  have  acquired 
the  thing  fully  for  the  partnership,  without  the  other  partners  being 
obliged  to  demand  it  from  him. 

*§  III.    What  does  or  does  not  enter  into  the  Partnership  Uni-  r  ^~  -, 
versorum  Bonorum. 

33.  This  partnership  being  generally  of  all  property,  present  and  future, 
every  thing  which  accrues  to  either  of  the  partners  during  the  partner- 
ship falls  into  it,  by  whatsoever  title  it  comes  to  him,  even  by  succession, 
donation,  or  legacy,  1.  3,  §  1,  (Dig.  17,  tit.  2,  sec.  3,  §  1 ;)  even  for  a 
civil  reparation  of  an  injury  which  has  been  inflicted  upon  his  own  per- 
son, or  upon  the  persons  of  those  belonging  to  him :  1.  52,  §  16,  ff.  Diet. 
Tit.     (Dig.  xvii.  tit,  2,  sec.  52,  §  16.) 

34.  Nevertheless,  in   one  case,  things  which  have  accrued  to  one  of 
the  partners  under  the  title  of  donation  or  legacy  do  not  fall  into  the 
partnership ;  that  is  to  say,  when  they  have  been  given  or  bequeathed  to 
him  upon  condition  that  they  should  not  do  so ;  because  the  donor  or 
testator,  having  had  it  in  his  power  to  refrain  from  giving  these  things, 
has  it  also  in  his  power  in  conferring  them  to  attach  to  his  donation  what- 
ever condition  he  pleased ;  and  he  does  not  thereby  do  any  wrong  to  the 
partners  of  the  donee,  who  would  have  had  no  pretence  to  them,  if  he, 
being  the  owner,  had  not  made  the  donation. 

35.  But  whatever  declaration  there  may  be  in  a  contract  of  purchase 
which  a  universal  partner  makes,  that  the  purchase  is  made  on  the  private 
account  of  the  purchaser,  the  things  purchased  will  nevertheless  fall  into 
the  partnership. 

33  See  ante,  n.  29,  as  to  present  law  of  France. 


30  POTHIER    ON    PARTNERSHIP. 

Cannot,  however,  it  be  said,  as  in  the  preceding  case,  that  the  seller 
who  had  it  in  his  power  to  refrain  from  selling,  was  able  to  sell  under 
that  condition  ?  No.  The  reason  of  the  difference  is,  that  in  a  contract 
of  this  nature  the  presumption  is  that  the  purchaser  has  caused  that 
clause  to  be  inserted  in  fraud  of  the  partnership.  The  contract  of  sale 
being  a  commercial  contract,  in  which  each  of  the  parties  usually  seeks 
only  his  own  interest,  the  presumption  arises  that  the  vendor  would  be 
indifferent  whether  the  thing  which  was  sold  did  or  did  not  fall  into  the 
partnership  of  the  purchaser.  On  the  contrary,  donations  being  made 
r  *98  1  fr°m  m°tives  *of  friendship  which  the  donor  bears  towards  the 
-I  donee,  such  motive  may  cause  the  donor  to  wish  and  stipulate 
that  he  alone  should  profit  by  the  things  given,  and  that  they  should  be- 
long to  the  partnership. 

36.  However  universal  this  kind  of  partnership  may  be,  whatever  one 
of  the  partners  may  have  acquired,  by  criminal  or  dishonest  means,  does 
not  fall  therein ;  because,  it  being  of  the  essence  of  partnerships  that 
they  should  be  entered  into  in  order  to  make  in  common  an  honest  profit 
(supra,  n.  14.),  no  criminal  or  dishonest  gain  is  capable  of  being  made 
the  object  of  any  partnership. 

For  example,  if  one  of  the  partners  had  carried  on  smuggling,  and  had 
a  warehouse  of  smuggled  goods,  the  partners  have  no  right  of  action  to 
compel  him  to  bring  them  into  the  partnership,  or  to  account  for  the 
profit  which  he  has  made  in  such  undertakings.  The  reasons  above  given 
and  the  laws  which  forbid  them  taking  part  in  such  transactions,  furnish 
a  defence  to  that  action.  They  have  only  a  right  of  action  to  compel  him 
to  refund  the  money  which  he  has  taken  from  the  common  chest  in  order 
to  carry  on  the  smuggling,  he  having  no  right  to  take  it  for  such  a  pur- 
pose. Although  what  one  of  the  partners  has  acquired  by  criminal  or 
dishonest  means  does  not  fall  into  the  partnership,  nevertheless,  if  that 
partner  had  brought  it  into  the  partnership,  and  put  it  into  the  common 
chest,  whether  with  or  without  the  knowledge  of  his  partners,  it  would 
not  be  allowable  for  him  to  withdraw  and  take  it  away,  under  the  pretext 
that  as  it  was  acquired  by  criminal  means,  it  does  not  belong  to  the 
partnership ;  for  it  is  not  allowable  for  him  to  allege  his  own  turpitude. 
Nevertheless,  if  the  goods  were  stolen,  and  he  had  been  condemned  to 
restore  them  to  the  owner,  it  would  be  lawful,  in  obedience  to  a  judicial 
sentence,  to  take  them  out  of  the  warehouse  where  he  had  placed  them. 
Quod  ex  fur  to,  vel  ex  olio  maleficio  qusesitum  est,  in  societatemnonopor- 
tere  conferri  palam  est ;  quia  delictorum  turpis  atquefoeda  communio  est. 
Plane,  si  in  medium  collatum  sit,  commune  erit  lucrum  ;  1.  53,  quod 
enim  ex  maleficio  contulerit  socius,  non  aliter  recipere  debet,  qudm  si 
damnatus  sit.  1.  54.  (Dig.  Lib.  xvii.  tit.  2,  §§  53  and  54.) 

r  *oq  "1  §  ^-    ®f  Charges  or  Incumlrances  on  the  Partnership   Univer- 

sorum  Bonorum. 

37.  This  partnership,  comprehending  all  the  property,  present  and 
future,  of  the  partners,  it  ought  equally  to  comprehend  all  the  charges, 


DIFFERENT    KINDS     OF     PARTNERSHIPS.  31 

as  well  present  as  future,  thereon.  For  this  reason  the  partnership  ought 
to  be  bound,  not  only  by  all  the  debts  which  each  of  the  partners  owed 
when  they  entered  into  partnership  (these  debts  being  a  present  charge 
on  their  present  property,  quumbona  non  intettiyantur,  nisi  deducto  sere 
alieno)  :  but  it  ought  also  to  be  bound  by  all  the  expenses  which  each 
of  the  partners  may  be  obliged  to  incur  during  the  partnership,  as  they 
are  a  future  charge  on  all  the  goods,  present  and  future. 

In  those  expenses  ought  to  be  comprehended,  not  only  what  each  of 
the  partners  is  obliged  to  incur  for  the  maintenance  of  himself  and  his 
children,  and  for  their  education,  but  even  generally  for  all  the  reasona- 
ble expenses  which  propriety  (bienseance)  may  require  any  of  the  part- 
ners to  incur  during  the  partnership,  provided  that  they  are  so  incurred 
with  a  prudent  economy, ^regard  being  had  to  the  resources  of  the  part- 
nership, and  the  rank  of  the  partners ;  1.  73,  §  1,  Diet.  Tit.  (Big.  lib. 
xvii.  tit.  2,  s.  73,  §  1.) 

38.  According  to  these  principles  the  common  opinion  of  the  Doctors 
is,  that  such  partnership  is  bound,  not  only  by  the  expenses  of  each  of 
the  partners  for  the  education  of  his  children,  such  as  the  outfits  with 
which  he  furnishes  those  who  follow  the  profession  of  arms,  the  allow- 
ances (pensions}  of  those  whom  he  sends  to  colleges  or  the  universities, 
the  books  which  are  necessary  for  them,  the  salaries  and  remuneration  of 
their  tutors,  &c.,  but  even  those  which  he  should  incur  in  order  to  pro- 
cure an  establishment  for  them,  by  marriage  or  otherwise ;  and  that 
consequently  the  portions  which  one  of  the  partners  may  have  given  to 
his  daughters  on  their  marriage,  provided  they  are  not  excessive,  ought 
to  be  borne  by  the  partnership,  and  they  cannot  be  deducted  from  the 
share  of  that  partner  in  the  partnership ;  because  the  obligation  of 
providing  for  children  being  an  Obligation  natural  to  fathers  r  .,.„«  -, 
and  mothers,  that  expense  was  a  future  charge  on  all  his  property,  L 
present  and  future.  This  is  the  opinion  of  Treutler,  of  Bachou  on 
Treutler,  of  the  Theses  of  Cologne,  of  Lauterbauch,  of  Brunneman, 
&c.  This  decision,  according  to  these  authors,  would  be  the  same,  even 
when  only  one  of  the  partners  had  daughters,  in  the  same  manner  as 
successions,  which  come  to  one  of  the  partners  during  that  partnership, 
fall  into  it,  notwithstanding  the  other  has  no  succession  to  expect.  Nee 
obstat  that  this  is  contrary  to  the  equality  which  ought  to  prevail  in 
partnerships ;  because  we  have  before  seen  that  this  kind  of  partnership 
does  not  cease  to  be  valid,  although  each  of  the  partners,  has  contributed 
to  it  unequally.  Moreover,  the  Law,  81,  ff.  Pro  Soc.  (Dig.  xvii.  tit. 
2,  sec.  81),  says  expressly  that  the  agreement  that  the  daughters  of  the 
partners  shall  be  endowed  out  of  the  common  funds,  provided  it  be 
entered  into  with  all  the  partners,  does  not  cease  to  be  valid,  although 
only  one  of  them  has  a  daughter  to  marry. 

Domat  (liv.  i.  tit.  8,  sect.  3,  n.  11,)  appears  inclined  to  draw  from 
this  law  (81,)  an  argument  against  the  opinion  which  we  have  just  given, 
viz.,  that  such  partnership  of  all  property,  present  and  future,  is  extended 
to  the  portions  of  the  children  of  the  partners,  because  it  is  said  in  that 
law  that  the  partnership  is  bound  by  them  when  the  parties  have  agreed 
thereto ;  from  whence  he  concludes  that  it  is  not  bound  by  them  legally 

SEPTEMBER,  1854. — 28 


32  POTHIER     ON     PARTNERSHIP. 

without  an  express  contract.  The  answer  to  that  objection  is,  that  the 
question  of  that  law  being  proposed  generally  with  respect  to  all  kinds 
of  partnerships,  and  not  only  with  respect  to  the  partnership  of  all  pro- 
perty, present  and  future,  Papinian  answers  that  it  can  only  take  place 
with  respect  to  those  which  contain  an  agreement  that  the  fortunes  of 
the  daughters  of  the  partners  shall  be  taken  from  the  common  funds. 
Moreover  Papinian  draws  no  distinction,  because  that  does  not  come 
within  his  subject,  if  they  contain  that  agreement  by  an  express  con- 
tract, which  is  necessary  in  partnerships  which  are  not  of  goods  present 
and  future,  or  if  they  contain  it  from  the  nature  of  the  contract,  where 
the  partnership  is  of  all  property,  present  and  future. 
r  jj-..  -.  39.  With  respect  to  the  extravagant  expenses  which  a  *part- 
•J  ner  may  incur  during  a  partnership  of  all  present  and  future 
pr9perty,  the  partnership  is  not  bound  by  them  :  they  ought  to  be  borne 
by  his  own  share :  for  it  cannot  be  said  that  they  were  a  future  charge 
upon  his  present  and  future  property  which  he  has  put  into  the  partner- 
ship, since  he  was  under  no  obligation,  and  it  was  his  duty  not  to  have 
incurred  them. 

40.  A  fortiori,  he  ought  not  to  charge  upon  the  partnership  what  he 
has  lost  at  play,  or  in  debauchery  :    Quod  in  aleti  aut  adulterlo  perdiderit 
socius,  ex  medio  non  est  laturus  ;  1.  59,  §  1.  ff.  Pro  Soc.     (Dig-  xvii.  tit. 
2,  sec.  59,  §  1.) 

41.  For  the  same  reason,  the  partnership  will  not  be  bound  by  the 
penalties  (amendesj  nor  (reparations  civiles)  damages,  to  which  one  of 
the  partners  may  have  been  condemned  for  some  offence.      L.  52,  §  18, 
ff.  Diet.  Tit.     (Dig.  lib.  xvii.  tit.  2,  sec.  52,  §  18.) 

If,  nevertheless,  he  had  been  condemned  unjustly,  the  partnership 
ought  to  bear  that  loss,  provided  it  was  not  by  his  own  fault,  as  for 
instance  by  making  default,  he  allowed  himself  to  be  condemned ;  d.  § 
18.  The  reason  is,  that  the  costs  in  such  a  case  are  expenses  which  do 
not  arise  from  his  own  fault,  and  which  he  could  not  avoid.  They  are  a 
charge  upon  his  property,  with  which  the  partnership  is  charged. 

Observe  that  the  partner  cannot  be  heard  to  allege,  that  he  has  been 
unjustly  condemned,  for  whilst  the  judgment  remains,  it  affords  a  pre- 
sumption against  him.  But,  if  after  having  got  it  reversed  (fait  infirmer} 
by  the  appellate  judge,  he  could  not  recover  what  he  had  been  obliged  to 
pay  in  obediance  to  the  judgment,  in  consequence  of  the  insolvency  of 
the  correspondent  and  his  surety,  it  would  in  such  case  be  a  loss  which 
ought  to  fall  upon  the  partnership. 

42.  The  principle  which  we  have  established  that  the  partnership  is 
not  bound  by  civil  damages,  and  penalties  (amende*)  due  for  the  offence 
of  one  of  the  partners,  is  subject  to  an  exception  in  the  case  where  that 
partner  has  brought  into  the  capital  of  the  partnership  what  has  accrued 
to  him  from  that  offence  ;   because,  in  such  case,  the  partnership  is  bound 
r  *QO  i  kv  the  restitution  which  ought  to  be  made  to  the  *injured  party, 

J  at  least  to  the  extent  of  what  the  partnership  has  profited  from 
the  occasion  of  the  offence,  when  the  property  arising  therefrom  has 
without  the  knowledge  of  the  other  partners  been  put  into  the  capital  of 
the  partnership.  But  if  with  their  knowledge  and  assent,  the  partner- 


DIFFERENT    K,I  N  D  S    OF    PARTNERSHIPS  33 

ship  will  be  bound  by  all  damages  which  may  result  from  the  offence 
whether  it  be  for  civil  reparation,  or  for  (amendes}  penalties.  Si  ex  hoc 
conventus  fuerit,  qui  malejicium  admisit,  id  quod  contulit,  aut  solum, 
aut  cum  pcena  auferret:  si  mihi  proponas,  insciente  sociorum  in 
societatis  rationem  hoc  contulisse  :  quod  si  sciente,  etiam  pcenam  socium 
agnoscere  oportet ;  cequum  est  enim,  ut  cujus  participavit  lucrum,  parti- 
cipet  et  damnum,  1.  55.  ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2,  sec.  55.) 
Nee  quicquam  interest  utriim  manente  societate  praestiterit  ob  fur  turn,  an 
dissolutd  ed  ;  1.  56.  (Dig.  lib.  xvii.  tit.  2,  sec.  56.) 

Article  2. 

On  the  second  kind  of  ^  Universal  Partnership,  called  l>y  the  Romans 
universorum  quse  ex  qucestu  veniunt.  ' 

43.  The  second  kind  of  universal  partnership  is  that  which  is  called 
in  the  Roman  law  universorum  quse  ex  qusestu  veniunt,  and  the  parties 
thereby  contract  a  partnership  of  all  that  they  may  acquire  during  its 
continuance  from  every  kind  of  commerce. 

They  are  considered  to  enter  into  this  kind  of  partnership  when  they 
declare  that  they  contract  together  a  *partnership,  without  any  .-  #o~  .. 
further  explanation.  Coiri  societatem  simpliciter  licet,  et  si  non  L 
fuerit  distinctum,  videtur  coita  esse  universorum  quce  ex  qucestu  veniunt ; 
1.  7,  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2,  sec.  7.)  The  same  kind  of  part- 
nership also  is  considered  to  be  entered  into  when  the  parties  declare 
that  they  contract  a  partnership  of  all  the  gains  and  profits  they  may  make 
from  all  sources.  Sed  et  si  adjiciatur,  "ut  et  qusestus  et  lucrisocii  sint," 
verum  est,  non  ad  aliud  lucrum  quam  quod  ex  qusestu  venit,  hanc  quoque 
adjectionem  pertinere;  1.  13,  ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2,  sec. 
13.) 

44.  According  to  the  Roman  law,  the  enjoyment  only  of  the  property 
and  not  the  property  itself  which  the  parties  had  when  they  contracted 
this  partnership,  entered  therein.    But  according  to  our  customary  law, 
the  moveable  property,  which  they  have  at  the  time  of  the  contract, 
enters  therein :  my  "  Custom  of  Orleans/'  article  214,  also  contains  a 

<3  A  universal  partnership  of  profits  comprehends  all  that  the  parties  shall  acquire 
by  their  industry,  by  -whatever  title  it  may  be,  during  the  term  of  the  partnership  ; 
the  moveables  which  each  of  the  partners  possesses  at  the  time  of  the  contract 
are  also  comprised  therein,  but  their  personal  immoveables  enter  therein  for 
enjoyment  only.  Civ.  Cod.  of  France,  1838. 

The  simple  agreement  for  universal  partnership  made  without  any  other  ex- 
planation, only  imports  a  universal  partnership  of  profits.  Civ.  Cod.  of  France, 
1839. 

It  is  unnecessary  to  say  anything  about  universal  partnerships ;  the  former 
kind  universorum  bonorum  seems  to  be  entirely  unknown  amongst  us,  and  perhaps 
the  same  may  be  said  of  the  latter,  universorum  bonorum  quce  ex  qucestu  veniunt. 
"  There  is  probably,"  says  a  learned  American  Judge,  "  no  such  thing  as  a  uni- 
versal partnership,  if,  by  the  terms  we  are  to  understand  that  every  thing  done, 
bought,  or  sold  is  to  be  deemed  on  partnership  account.  Most  men  own  some 
real  or  personal  estate  which  they  manage  exclusively  for  themselves."  U.  States 
Bank  v.  Binney,  5  Mason  R.,  176.  183. 


34  POTHIBR    ON    PARTNERSHIP. 

provision  to  this  effect: — "This  partnership,  if  it  be  not  limited,  will  be 
understood  only  of  all  the  moveable  property,  and  the  immoveable  pro- 
perty acquired  by  the  said  parties  during  the  partnership."  See  Berry, 
tit.  8,  art.  10,  &c. 

45.  It  is  only  what  each  of  the  partners  acquires  during  the  partner- 
ship by  some  kind  of  commerce,  as  by  purchase,  lending,  &c.,  which 
falls  therein.     Si  quod  lucrum  ex  emptione,  vendttione,  locatione,  con- 
ductione  descendit;  Diet.  Leg.  7.     (Dig-  lib.  xvii.  tit.  2,  sec.  7.) 

Thus  also  whatever  each  of  them  acquires,  by  the  exercise  of  his  pro- 
fession, his  pay,  his  appointments;  1.  52,  §  8,  ff.  Diet.  Tit.  (Dig.  lib. 
xvii.  tit.  2,  sec.  52,  §  8.) 

46.  This  partnership  being  generally  of  all  that  the  partners  may  ac- 
quire during  the  term  of  the  partnership,  it  suffices  that  one  of  them  may 
have  made  by  some  kind    of   commerce    any  acquisition   during    that 
period,  in  order  that  it  may  fall  into  the  partnership,  even  although  the 
contract  by  which  such  acquisition  is  made  does  not  express  that  it  is 
entered  into  on  account  of  the  partnership. 

Yet  more,  if  the  contract  expressly  declares  that  the  acquisition  is 
made  on  the  private  account  of  one  of  the  partners,  still  the  others  can 
r  *R1 1  °klige  him  *°  bring  it  into  the  *common  stock  unless  it  has  been 
•J  made  out  of  his  own  private  moneys  excepted  from  the  partner- 
ship. 

47.  Observe  also  that  real  estates,   although  acquired  by  commerce 
during  the  partnership,  do  not  fall  into  it,  when  the  title,  by  virtue  of 
which  one  of  the  partners  has  acquired  them,  is  anterior  to  the  contract 
of  partnership,  as  when,  having  bought  an  estate  before  the  contract  of 
partnership,  the  tradition  or  conveyance  of  it  has  not  been  made  to  him 
until  after.     In  that  case,  the  estate  is  his  own  private  property;  he 
ought  only  to  account  to  the  partnership  for  the  money  which  he  has 
drawn  therefrom  to  pay  the  purchase-money. 

48.  In  like  manner  the  property,  of  which  one  of  the  partners  becomes 
owner,  during  the  partnership,  by  the  cancellation  of  the  contract  of 
alienation,  which  he  had  entered  into  with  respect  to  it  before  the  con- 
tract of  partnership,  rather  than  by  a  new  acquisition  which  he  has  made 
thereof,  does  not  fall  into  the  partnership;  as,  for  instance,  when  he  has 
revoked  on  account  of  the  (survenance\  unexpected  birth  of  children,  or 
on  account  of  ingratitude,  a  donation  which  he  had  made  of  such  pro- 
perty. 

49.  Neither  should  the  estate — which  one  of  the  partners  has  acquired 
during  the  partnership  (par  droit  de  retrait  lignager,)*  by  the  right  of 
redemption  as  being  of  the  same  family  as  the  vendor, — fall  into  the 
partnership,  because  that  right,  by  its  nature,  not  being  (cessiUe)  assign- 
able, ought  not  consequently  to  be  capable  of  being  (communicable}  made 
common. 

50.  Although  exchange  or  barter  may  be  (un  litre}  a  kind  of  com- 
merce, nevertheless,  as  the  estate  taken  in  exchange  is  substituted  for 
that  which  has  been  given  in  exchange,  and  assumes  its  nature,  the 

*  This  right  of  redemption,  having  its  origin  in  feudal  times,  has  not  been  re- 
cognised in  the  French  Civil  Code. 


DIFFERENT    KINDS     OF    PARTNERSHIPS.  35 

estate  acquired  by  one  of  the  partners  during  the  partnership,  in  exchange 
for  an  estate  which  was  his  own  private  property,  will  be  equally  so,  and 
will  not  fall  into  the  partnership. 

51.  It  is  only  what  each  of  the  partners  has  acquired  *under  r  ^OK  -i 
the  head  of  commerce  during  the  partnership  which  falls  into  it.  L 

Whatever  comes  to  one  of  the  partners  by  succession,  donation  or 
legacy,  does  not  fall  therein.  L.  9,  10,  11,  and  71,  §  1,  ff.  Pro.  Soc. 
(Dig.  lib.  xvii.  tit.  2,  ss.  9,  10,  11,  and  71,  §  1.) 

My  Custom  of  Orleans,  Art.  317,  has  also  a  provision  to  this  effect: 
it  takes  place  even  when  the  donation  has  been  made  to  him  in  conse- 
quence of  the  business  of  the  partnership  procuring  for  him  the  good- 
will of  the  donor.  L.  60,  §  1,  in  fine  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit. 
2,  8.  60,  §  1.) 

52.  With  respect  to  the  charges  on  this  partnership,  according  to  the 
Roman  law,  the  partners  not  bringing  into  it  any  of  the  property  which 
they  had  when  they  entered  into  the  contract,  it  ought  not  to  be  bound 
by  the  debts  which  they  then  owed. 

But  our  customary  law  bringing  into  that  partnership  what  the  part- 
ners had  at  the  time  they  entered  into  the  contract,  it  follows  that  such 
partnership  ought  to  be  bound  by  all  the  (les  defies  moLilieres)  debts 
affecting  moveables  which  they  then  owed.  Those  debts,  according  to 
principles  of  our  ancient  French  law,  ought  to  follow  the  moveable  pro- 
perty, being  a  charge  upon  it. 

53.  With  regard  to  the  debts  contracted  by  the  partners  during  the 
partnership,  the  partnership  will  be  bound  by  those  only  which  are  con- 
tracted for  the  business  of  the  partnership :  Sed  nee  ses  alienum,  nisi 
quod  ex  qusestu  pendebit,  veniet  in  rationem  societatis.     L.  12.     (Dig. 
lib.  xvii.  tit.  2,  sec.  12.) 

SECTION  2. 
On  Particular  Partnerships. 

There  are  many  kinds  of  Particular  Partnerships.  There  is  one  where 
parties  contract  to  have  certain  particular  things  in  common,  and  to 
divide  their  produce;  another  where  they  contract  to  exercise  in  common 
some  art  or  profession.  Lastly,  there  are  partnerships  in  commerce. 

*§  I.    Of  Partnership  in  certain  Things.  r*36"j 

54.  A  partnership  may  be  contracted  in  particular  things,  or  even  in 

s<  A  particular  partnership  is  that  which  applies  only  to  certain  determinate 
objects,  or  to  their  use,  or  to  fruits  to  be  reaped  therefrom.  Civ.  Cod.  of  France, 
1841.  According  to  our  law  particular  partnerships  are  divided  into  two  kinds, 
public  and  private ;  with  regard  to  public  companies  they  are  divided  into  unin- 
corporated, incorporated,  or  such  as  exist  under  a  charter  from  the  Crown. 

It  will  be  sufficient  here  to  state  that  unincorporated  companies  are,  except  in 
the  mere  mode  of  management,  unless  it  be  expressly  provided  for  by  statute, 
governed  by  the  same  rules  as  private  partnerships.  (Coll.  764.  771.)  Incorpo- 
rated companies  or  corporations  are  governed  strictly  by  the  terms  of  their  charter, 


36  POTHIEE    ON    PARTNERSHIP. 

r  *37  n  one  thing  alone  :  Societates  contrahuntur  unius  rei;  *1.  5,  ff.  Pro 
J  Soc.  (Dig.  lib.  xvii.  tit.  2,  s.  5) ;  as  when  two  neighbours  agree 
to  purchase  a  cow  at  their  common  expense,  in  order  to  feed,  take  care 
of  her  in  common,  and  share  the  profits. 

There  may  be  put  into  -this  kind  of  partnership  of  particular  things,  in 
the  same  manner  as  in  universal  partnerships,  either  the  things  themselves, 
or  only  their  use  and  the  perception  of  their  profits.  For  example,  when 
two  neighbours,  who  have  each  a  cow,  have  agreed  that  the  two  cows  shall 
be  common  between  them,  it  is  a  partnership  of  the  things  themselves ; 
each  of  the  partners  is  no  longer  the  separate  owner  of  his  cow,  each  of 
them  is  the  owner  in  common  of  the  two  cows.  Therefore  if  one  of  the 
two  cows  happen  to  die  the  loss  will  be  common,  and  that  which  survives 
will  continue  to  belong  in  common  to  the  two  partners,  and  he  who 
brought  her  into  the  partnership  will  not  be  able  to  claim  any  more  right 
to  her  than  the  other.  But  if  two  neighbours,  without  agreeing  that 
their  cows  shall  be  in  common,  only  agree  that  they  shall  take  in  com- 
mon all  the  fruits  and  profits  which  may  accrue  from  them,  in  that  case 
the  cows  themselves  are  not  put  into  the  partnership,  each  of  the  part- 
ners remains  sole  owner  of  his  own  cow,  and  if  it  happen  to  die  he  alone 
bears  the  loss  of  it,  and  cannot  make  any  claim  to  the  other. 

In  like  manner,  when  two  persons  enter  into  a  contract  of  partnership 

and  the  individual  shareholders  or  stockholders  will  not,  as  in  the  case  of  unin- 
corporated companies,  be  liable  for  the  acts  of  their  directors  or  other  officers  or 
members,  unless  it  be  expressly  declared  in  their  charters.  Stor.  Part.  109. 

A  partnership  which  would,  strictly  speaking,  be  sometimes  called  by  the 
Eoman  or  French  lawyers  &  particular  partnership,  would  be  called  by  us  a  general 
partnership;  as,  for  instance,  when  a  merchant  carrying  on  only  one  branch  of 
trade  or  commerce  enters  into  partnership  with  another,  it  would  be  called  a 
general  partnership,  in  the  same  way  as  if  they  carried  on  any  other  trade  or  busi- 
ness together  in  common. 

That  species,  however,  of  particular  partnership  which  is  contracted  for  the 
purpose  of  carrying  out  a  single  transaction  or  adventure  only,  as  the  purchase 
and  sale  on  joint  account  of  a  particular  parcel  of  goods,  is  generally  called  a 
special  or  limited  partnership.  Stor.  Part.  107. 

So  in  our  law  there  may  be  a  partnership  in  profits  without  there  being  a  part- 
nership injthe  capital  stock.  Thus  where  several  persons  joined  together  for  the 
purpose  of  carrying  on  the  business  of  common  carriers  of  passengers  and  goods, 
and  one  finds  a  coach  and  the  others  divide  the  roads  into  districts,  and  each 
horses  and  conveys  the  coach  through  his  own  district,  finding  his  own  horses, 
harness,  stables,  and  equipments,  servants,  and  coachmen,  and  all  things  neces- 
sary for  the  purpose,  there  is  no  partnership  in  the  stock  in  trade  although  there 
is  a  partnership  in  the  accruing  profits.  (Barton  v.  Hanson,  2  Taunt.  49.  51 ;  and 
see  Wilson  v.  Whitehead,  10  M.  &  W.  503.)  If  goods  are  sent  to  a  broker  to  sell, 
under  an  agreement  that  he  is  to  have  half  of  whatever  he  can  get  for  them  beyond 
a  certain  amount,  there  is  no  partnership  in  the  goods  although  he  is  a  partner 
with  the  owner  in  the  sale.  Smith  v.  Watson,  2  B.  &  C.  481,  3  D.  &  R.  751; 
Meyer  v.  Sharpe,  5  Taunt.  74,  2  Addis.  Cont.  749. 

But  still  there  may  be  partnerships  where,  although  all  the  capital  is  contributed 
by  one  and  his  labour  only  by  the  other,  the  capital  is  to  be  considered  as  joint 
stock,  to  which  or  to  the  produce  of  which  they  are  entitled  in  equal  shares.  See 
Reid  v.  Hollinshed,  4  B.  &  C.  867;  Puffendorf  on  Law  of  Nat.  &  Nat.,  5  Ch.  8,  12 
by  Kennet  and  Barbeyraac's  notes.  Stor.  Partn.,  43.  In  our  law  as  well  as  in 
the  French,  in  determining  the  question,  what  property  belongs  to  the  joint  stock 
— an  important  question  when  the  shares  of  the  partners  are  to  be  ascertained, — 
the  Court  will  be  guided  by  the  intention  of  the  parties  when  it  can  be 'ascer- 
tained. 


DIFFERENT     KINDS    OF    PARTNERSHIPS.  37 

to  sell  in  common  certain  things  which  belong  to  each  of  them,  and  to 
share  the  proceeds,  it  is  necessary  to  examine  what  was  their  intention. 
If  it  was  to  put  into  the  partnership  the  things  themselves,  it  will  be  a 
partnership  of  the  things  themselves,  and  if  one  of  the  things  perish  be- 
fore the  proposed  sale  the  loss  will  be  common.  But  if  the  intention 
was  to  put  into  partnership,  not  the  things  themselves,  but  the  proceeds 
of  the  proposed  sale,  the  entire  loss  will  fall  upon  that  partner  to  whom  the 
thing  belongs.  This  is  the  distinction  which  Celsus  draws  in  the  following 
case  :  —  Quilm  tres  equos  haberes,  et  ego  unum,  societatem  coimus,  r-*qo  -i 
"  ut  accepto  *equo  meo,  quadrigam  venderes,  et  ex  pretio  quartam  L 


ilii  redderes:"  Si  igitur  ante  venditionem  equus  meus  mortuus  sit,  non 
putare  se  Celsus  ait,  societatem  manere,  nee  ex  pretio  equorum  tuorum 
par  tern  deberi  ;  non  enim.habendae  quadrigae,  sed  vendendse  coitam  socie- 
tatem ;  casterum  si  id  actum  dicatur,  ut  quadriga  Jieret,  eaque  commu- 
nicaretur,  tuque  in  ea  tres  paries  haberes,  ego  quartam,  non  dubie  ad- 
huc  socii  sumus.  L.  58,  ff.  Pro  Soc.  (  Dig.  lib',  xvii.  tit.  2,  sec.  58.  ) 
The  same  distinction  ought  to  be  made  with  respect  to  two  tradesmen 
who  enter  into  partnership  for  the  sale  of  goods  which  they  each  have  in 
their  shop.  If  their  intention  was  to  put  their  goods  into  the  partnership, 
and  afterwards  those  which  were  in  the  shop  of  one  of  them  are  destroyed 
by  lightning,  the  loss  will  fall  upon  the  partnership,  and  the  partner 
whose  shop  has  been  burnt  will  continue  to  have  a  share  in  the  goods  in 
the  shop  of  the  other  partner.  But  if  the  intention  of  those  tradesmen 
was  to  contract  a  partnership,  not  of  the  goods,  but  of  the  sale  which 
they  should  make  of  them,  the  loss  which  happened  by  the  lightning 
striking  the  shop  of  one  of  the  tradesmen  will  fall  upon  him  alone,  and 
he  will  not  have  any  claim  to  a  share  in  the  goods  of  the  other. 

§  II.    Of  Partnerships  for  the  Exercise  of  a  Profession. 

55.  Several  persons  of  the  same  profession  or  trade  may  enter  into  part- 
nership together  for  the  exercise  of  their  profession  *or  trade,  r  ^Q  -. 
and  agree  to  put  into  a  common  stock  all  the  gains  which  they  L 
may  make  in  the  exercise  of  their  trade  or  profession,  im  order  to  share 
them  together. 

65  The  contract  by  which  several  persons  enter  into  an  association,  either  for  a 
proposed  enterprise  or  for  the  exercise  of  some  trade  or  profession,  is  also  a  par- 
ticular partnership.  Civ.  Cod.  of  France,  1842. 

Our  law  is  the  same  as  to  the  objects  of  partnership.  Stor.  Partn.  114  :  Coll. 
Partn.  622,  623. 

These  partnerships  may  embrace  a  variety  of  businesses,  such  as  that  of  attor- 
neys, solicitors,  conveyancers,  surgeons,  apothecaries,  mechanics,  artisans,  engi- 
neers, owners  of  stage  coaches,  farmers,  brokers,  bankers,  factors,  consignees,  and 
even  of  artists,  sculptors,  and  painters.  (See  Stor.  Partn.  114;  Coll.  Partn.  29  — 
32.)  But  there  cannot  lawfully  be  a  partnership  in  a  mere  personal  office,  especi- 
ally when  it  is  of  a  public  nature  and  involves  a  distinct  personal  confidence  in  the 
skill  and  integrity  of  the  particular  party.  (Stor.  Partn.  115  ;  Coll.  Partn.  31,  32.) 
The  case,  put  by  Pothier,  of  the  slaters  entering  into  a  partnership  not  to  work  ex- 
cept at  an  exorbitant  price,  would  not  according  to  our  laws  be  illegal;  supposing 
however  that  it  was  a  part  of  the  terms  of  the  partnership  that  the  parties  were  to 
use  violence  and  intimidation  to  prevent  other  slaters  from  working,  save  at  the 
price  they  fixed  upon,  or  unless  they  joined  with  them,  such  an  agreement  would 
be  illegal  and  the  partnership  consequently  void. 


POTHIER     ON    PARTNERSHIP. 

We  see  many  partnerships  of  this  kind  among  masons. 

These  partnerships  are  lawful  provided  they  do  not  tend  to  a  bad  ob- 
ject, for  instance,  that  of  arbitrarily  enhancing  the  price  of  their  labour. 
For  example,  in  the  case  where  a  violent  hurricane  has  unroofed  all  the 
houses  of  a  small  town ;  if  all  the  slaters  of  the  place  entered  into  a 
partnership  for  the  exercise  of  their  trade  during  a  certain  time,  in  order 
to  work  in  repairing  the  roofs,  and  they  agreed  among  themselves  not  to 
get  upon  the  houses  unless  paid  their  day's  work,  at  a  much  higher  than 
the  ordinary  price;  such  partnerships  ought  not  to  be  tolerated,  and  the 
(juyes  de police)  civil  judges  ought  to  punish  (des  amendes^  by  penalties 
those  who  have  entered  into  them. 

§  III.    Of  Partnership  for  Commerce  (or  Trade). 

56.  Savary,  in  his  "  Parfait  Negociant,"  notices  three  different  kinds 
of  partnerships  in  trade.     1.  Partnerships  en  nom  collectif,  or  under  a 
collective  name.     2.  Partnerships  en    commandite,  or  in  commendam. 
3.   Anonymous  and  unknown  partnerships. 

57.  Partnerships  en  nom  collectif  if  that  which  two  or  more  traders 
enter  into  to  carry  on  in  common  a  certain  commerce  in  the  name  of  all 
the  partners. 

r  ^  .  ~  -.  Therefore,  all  the  dealings  that  each  of  the  partners  enters 
J  *into  for  that  commerce  are  signed,  "such  a  person  and  com- 
pany." He  is  considered  to  contract  therein,  as  well  in  his  own  name 
as  in  the  name  of  his  co-partners,  who  are  considered  to  contract  and 
bind  themselves  jointly  with  him  by  his  agency. 

It  is  necessary,  however,  in  this  respect,  to  follow  the  laws  prescribed 
for  the  contract  of  partnership,  as  we  shall  afterwards  see. 

58.  This  partnership  is  composed  solely  of  the  things  which  the  part- 
ners put  therein  at  the  time  of  the  contract,  and  those  which  each  of  them 
has  acquired  during  the  partnership,  in  the  name  of  the  partnership,  by 
signing  the  dealings  "  such  a  Person   and  Company,"  whether   he  has 
made  the  acquisitions  with  the  money  of  the  partnership  or  with  his  own. 
But  the  things  which  one  of  the  partners  has  acquired  on  his  own  private 
account,  although  acquired  during  the  continuance  and  with  the  money 
of  the  partnership,  will  not  fall  into  it ;  that  partner  is  only  debtor  to  the 
partnership  for  the  sum  which  he  draws  out  of  it.     This  is  what  is  de- 
cided by  the  Law  4,  Cod.  Com.  utr.  jur.      Si  patruus  tuus  ex  communi- 
bus  bonis  res  comparavit,  non  omnium  bonorum  socius  constitutus  .   .  . 
res  emptas  communicare  eum  contra  juris  rationem  postulas.     In  this  re- 
spect, particular  differ  from  universal  partnerships,  as  we  have  before 

56  The  contract  of  partnership  is  governed  by  the  civil  law,  by  laws  peculiar  to 
commerce,  and  by  the  agreements  of  the  parties.  Comm.  Cod.  of  France,  18. 

The  law  recognises  three  kinds  of  commercial  partnerships  :  the  partnership 
(en  nom  collectif)  under  a  collective  name,  the  partnership  (en  commandite)  in  com- 
mendam, and  the  anonymous  partnership.  Ib.  19. 

5  The  partnership  en  nom  collectif  is  that  which  two  or  a  greater  number  of  per- 
sons contract,  and  which  has  for  its  object  to  trade  (sous  une  raison  sociale)  under 
the  style  of  a  firm.  (Comm.  Cod.  of  France,  20.)  This  kind  of  partnership  differs 
little  from  our  ordinary  partnerships  in  trade. 


DIFFERENT    KINDS     OF     PARTNERSHIPS.  39 

observed  (n.  46) :  accordingly,  it  results  from  these  terms,  non  omnium 
lonorum  socius  constitutus,  which  show  that  the  decision  would  have 
been  different  in  the  case  of  a  universal  partnership. 

59.  Nevertheless,  even  in  particular  partnerships,  if  the  *bar-  .-  # ...  -. 
gain  which  such  partner  has  made  on  his  own  private  account  L 

was  advantageous  and  belonged  to  the  species  of  business  which  was  the 
object  of  the  partnership,  and  it  would  have  been  for  the  interest  of  the 
partnership  to  make  it  on  account  thereof,  such  partner  can  be  compelled 
by  his  co-partners  to  bring  into  the  stock  of  the  partnership  that  which 
he  has  acquired  thereby;  for  he  ought  not  to  prefer  his  private  interest 
to  that  of  the  partnership,  nor  to  take  away  from  it  an  advantageous  bar- 
gain, by  making  it  on  his  own  private  account. 

For  example,  if  two  persons  enter  into  partnership  to  carry  on  a  large 
(cabaret}  tavern,  and  one*  of  them  finds  a  parcel  of  wine  at  an  advantage- 
ous price  for  sale,  and  buys  it  on  his  own  private  account  with  the  part- 
nership money  which  he  has  in  his  hands,  it  is  necessary  to  examine  if, 
when  he  made  that  bargain,  it  was  the  interest  of  the  partnership  to  make 
it  on  its  own  account.  If  there  was  only  wine  sufficient  for  a  short  time 
for  the  custom  of  the  tavern,  he  ought  not  in  this  case  to  make  the  bar- 
gain on  his  own  private  account.  But  if  the  tavern  was  stocked  with 
wine  for  many  years,  and  he  made  the  bargain  on  his  own  private  ac- 
count in  order  to  re-sell  the  wine  wholesale  in  the  hope  of  gaining  a 
profit  thereby,  the  object  of  their  partnership  not  being  wholesale  trade, 
his  partner  cannot  claim  a  share  of  it. 

60.  Partnership  en  commandite  is  that  which  a  trader  enters  r  ^  .„  -, 
*into  with  a  private  person  (a  person  not  in  trade)  for  a  trade  to  *- 

59  Upon  this  principle,  in  the  case  of  Featherstonhaugh  v.  Fenwick,  17  Ves.  298, 
where  one  partner  had  secretly,  for  his  own  benefit,  obtained  a  renewal  of  the  lease 
of  the  premises  where  the  joint  trade  was  carried  on,  he  was  held  to  be  a  trustee 
of  the  lease  for  the  benefit  of  the  partnership. 

So  where  two  persons  were  partners  in  dealing  in  lapis  calaminaris,  and  one  of 
them  who  was  a  shopkeeper,  instead  of  purchasing  it  from  the  miners  by  cash  pay- 
ment obtained  it  by  way  of  barter  for  shop  goods  ;  it  was  held  by  Sir  John  Leach, 
that  the  partnership  was  entitled  to  an  account  and  equal  division  of  the  profits 
made  by  such  barter.  "  The  defendant,"  said  his  Honour,  "  here  stood  in  a  relation 
of  trust  or  confidence  towards  the  plaintiff,  which  made  it  his  duty  to  purchase  the 
lapis  caliminaris  at  the  lowest  possible  price;  when  in  the  place  of  purchasing  the 
lapis  caliminaris  he  obtained  it  by  barter  for  his  own  shop  goods,  he  had  a  bias 
against  a  fair  discharge  of  his  duty  to  the  plaintiff.  The  more  goods  he  gave  in 
barter  for  the  article  purchased,  the  greater  was  the  profit  which  he  derived  from 
the  dealing  in  store  goods,  and  as  this  profit  belonged  to  him  individually,  and  as 
the  saving  by  a  low  price  of  the  article  purchased,  was  to  be  equally  divided  be- 
tween him  and  the  plaintiff,  he  had  plainly  a  bias  against  the  due  discharge  of  his 
trust  or  confidence  towards  the  plaintiff."  Burton  v.  Wookey,  6  Madd.  367.  See 
also  Glassington  v.  Thwaites,  1  S.  &  S.,  124.  133. 

60  The  partnership  en  commandite  is  contracted  between  one  or  more  partners 
jointly  and  severally  responsible,  and  one  or  more  partners  who  are  mere  holders  of 
capital,  who  are  called  commanditaries  or  partners  en  commandite.     It  is  carried 
on  under  a  partnership  name,  which  must  necessarily  be  that  of  one  or  more  of 
the  partners  who  are  jointly  and  severally  responsible.     Comm.  Cod.  of  France, 
23. 

It  appears  that,  although  at  one  time  partnerships  en  commandite  were  carried 
on  in  the  name  of  one  manager  alone,  they  were  afterwards,  before  the  promulga- 
tion of  the  Code,  modified  by  the  practice  and  necessities  of  commerce,  and  were 


40  POTIIIER    ON    PARTNERSHIP. 

be  carried  on  in  the  name  of  the  trader  only,  and  to  which  the  other  con- 
tracting party  contributes  only  a  certain  sum  of  money  which  he  brings 
into  the  capital  of  the  partnership  under  an  agreement  that  he  is  to  have 
a  certain  share  of  the  profits  if  there  are  any,  and  to  bear,  in  the  contrary 
event,  the  same  share  of  the  losses,  in  which,  nevertheless,  he  will  only 
be  bound  to  the  extent  of  the  capital  he  has  brought  into  the  partner- 
ship. 

61.  The  anonymous  or  unknown  partnership,  which  is  called  compte 
en  participation,  is  that  by  which  two  or  more  persons  agree  to  take  a 
share  in  a  certain  business  which  shall  be  carried  on  by  one  or  other  of 
them  in  his  own  name  alone. 

For  example,  I  am  about  to  purchase  a  certain  lot  of  goods  in  order 
to  resell,  but  not  having  the  necessary  funds  for  that  transaction,  I  pro- 
pose to  you  by  letter  whether  you  are  willing  to  take  a  share  with  me. 
You  answer  me,  you  will ;  and  that  you  will  let  me  have  the  necessary 
funds  for  your  share.  Consequently  I  do  the  business  in  my  own  name 
alone.  It  is  an  anonymous  partnership  which  is  entered  into  between  us, 
in  which  I  am  the  only  known  partner,  and  you  the  unknown  partner. 
r*4-3  1  There  is  also  a  kind  of  anonymous  partnership  called  *(mo- 
L  -I  mentantee  momentaneous,  when  (des  revendeurs}  brokers,  who 
attend  sales  by  auction  of  movables,  in  order  not  to  bid  one  against  the 
other,  reciprocally  agree  to  share  all  the  purchases  each  of  them  shall 
make  at  the  sale,  and  after  it  is  finished,  to  put  into  a  mass  all  the  goods 
which  they  have  each  bought  separately,  in  order  to  share  the  whole 
amongst  themselves.  This  partnership  is  permitted,  provided  it  does 
not  tend  to  get  the  goods  at  a  price  below  the  just  value,  and  there  are 
at  the  sale  a  great  concourse  of  other  (revendeurs}  brokers  besides  the 
partners. 

But  if  those  who  had  entered  into  this  partnership  were  the  only  per- 
sons at  this  sale  who  were  in  a  condition  to  enhance  the  price  of  the 
goods,  it  is  evident  that  such  partnership  which  had  a  tendency  to  get 
the  goods  for  as  low  a  price  as  they  wish  to  put  upon  them,  would  be 
unjust. 

carried  on  in  the  name  of  a  firm  composed  of  two  or  more  managers,  and  that  the 
capital  was  often  divided  into  shares. 

The  celebrated  Royal  Bank,  the  scheme  of  the  notorious  Law  was,  as  Troplong 
informs  us,  a  partnership  en  commandite  with  shares,  and  was  carried  on  under  the 
style  or  firm  of  Law  and  Company.  See  Troplong,  "Droit  Civil  Explique  Contrat 
de  Socie'te',  vol.  i.  p.  372. 

«!  The  anonymous  partnership  does  not  exist  under  a  partnership  name,  it  is  not 
designated  by  the  name  of  any  one  of  it's  partners.  Comm.  Cod.  of  France,  29. 
Anonymous  partnerships  are  similar  to  our  ordinary  joint-stock  companies  and 
other  unincorporated  associations.  Stor.  Partn.  110.  See  Smith's  "  Wealth  of 
Nations. 

Independently  of  the  above-mentioned  three  kinds  of  partnerships,  the  law  re- 
cognises commercial  associations  in  participation.  Ib.  47. 

These  associations  are  relative  to  one  or  several  commercial  operations.  They 
are  established  for  the  objects  in  the  forms,  with  the  proportions  of  interest,  and 
under  the  conditions  agreed  upon  between  the  participants.  Ib.  48. 

It  will  be  observed  that  Pothier  treats  the  anonymous  partnership  and  the  compte 
en  participation  as  in  effect  the  same,  although  it  will  be  observed  that  the  Code 
draws  a  clear  distinction  between  them. 


CLAUSES  IN  PARTNERSHIP  CONTRACTS.      41 

63.  The  anonymous  partnership  is  similar  to  the  partnership  en  com- 
mandite in  this  respect,  that  in  both  there  is  only  one  of  the  partners 
who  contracts  and  binds  himself  with  respect  to  the  creditors  of  the 
partnership;  the  unknown  partner  in  anonymous  partnership,  as  well  as 
the  partner  en  commandite,  are  only  bound  to  them  with  respect  (vis  a 
vis)  to  their  principal  partner. 

These  partners  differ  in  this  respect,  that  in  the  anonymous  partnership, 
the  unknown  partner  is  bound  indefinitely  with  regard  to  his  share  in 
the  partnership  to  acquit  his  partner  of  the  debts  which  he  has  con- 
tracted for  the  partnership ;  on  the  other  hand,  the  partner  en  com- 
mandite is  only  bound  to  the  extent  of  the  sum  which  he  has  put  into 
the  partnership. 


•THIRD    CHAPTER. 

The  different  Clauses  in  Partnership  Contracts. 

THE  clauses  which  ordinarily  occur  in  contracts  of  partnership,  relate 
either  to  the  time  from  the  commencement  or  *duration  of  the  r ^ ..  -, 
partnership,  its  management,  the  shares  each  of  the  partners  is  to  L 
have  in  the  profits  or  losses,  or  the  mode  of  recompensing  such  one  of 
the  partners,  who  although  their  shares  as  partners  are  equal,  Las, 
nevertheless,  contributed  to  the  partnership  more  than  the  others. 

§  I.    The  Clauses  concerning  the  Time  for  the  Commencement  and  the 
Duration  of  the  Partnership. 

64.  A  partnership  may  be  contracted  either  without  any  stipulation 
as  to  its  commencement,  in  which  case  it  commences  from  the  time  of 
the  contract;  or  to  commence  at  a  certain  period. 

That  period,  which  ought  to  be  expressed,  forms  the  matter  of  one 
clause  of  the  contract. 

The  contract  of  partnership  may  also  be  made  to  depend  upon  a  con- 
dition :  Societas  coiri potest  vel  extempore,  vel  sub  conditione.  L.  1.  ff. 
pro  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  1.) 

For  example,  I  can  enter  into  a  contract  for  a  partnership  in  trade 
with  a  person,  which  is  not  to  take  effect  unless  he  marry  my  daughter. 

65.  The  time  for  which  the  partnership  is  to  last,  ought  also  to  form 
the  matter  of  a  clause  of  the  contract  of  partnership. 

65  See  post  as  to  the  liabilities  of  partners  in  anonymous  and  en  commandite 
partnership. 

64  The  partnership  commences  at  the  very  instant  of  the  contract,  if  it  does  not 
mention  another  time.  Civ.  Cod.  of  France,  1843:  Civ.  Cod.  of  Louisiana,  2824. 
Our  law  is  the  same.  Stor.  Partn.  290 ;  Coll.  Partn.  140  ;  and  it  has  been  held  at 
law  that  parol  evidence  is  inadmissible  against  this  intendment.  Williams  v. 
Jones,  5  Barn.  &  Cress.  108. 

6  If  there  be  no  agreement  concerning  the  duration  of  the  partnership,  it  is  con- 
sidered to  be  contracted  for  the  whole  life  of  the  partners,  under  the  modification 


42  POT  II IEEON    PARTNERSHIP. 

That  time  may  be   of  greater  or  less  duration.     When  the   parties 

have  not  expressed  their  intention  concerning  it,  they  will  be  considered 

i-JiMjr -,  to  have  contracted  a  partnership  during   *the  whole    of  their 

J  lives  :  Societas  coiri  potest,  vel  in  perpetuum,  id  est  dum  vivunt, 

vel  ad  tempus :  diet.  leg.  1.     (Dig-  lib.  xvii.  tit.  2,  1.  1.) 

According  to  the  principles  of  the  Roman  law,  a  person  could  not 
enter  into  a  valid  contract  for  the  duration  of  the  partnership  after  the 
death  of  the  contracting  parties.  This  is  the  sense  in  which  Cujas 
understands  what  is  said  in  the  law  70,  ff.  diet.  tit.  Nalla  societatis  in 
seternum  coitio  est.  (Dig.  lib.  xvii.  tit.  2,  §  70.)  See  infra. 

§  II.    The  Clauses  which  relate  to  the  Management   of  the  Partnership. 

66.  Sometimes,  the  partnership  contract  gives  the  management  of  the 
goods  and  affairs  of  the  partnership  to  one  of  the  partners. 

The  partners  can  by  that  clause  either  limit  or  extend,  as  they  think 
right,  the  power  of  management  given  to  one  of  their  number. 

That  power,  in  the  absence  of  the  expressed  intention  of  the  parties, 
comprehends,  with  respect  to  the  goods  and  affairs  of  the  partnerships, 
whatever  is  comprehended  by  a  (procuration  yenerale\  general  power  of 
attorney  given  by  one  person  to  another  to  manage  his  property  :  For 
the  partner  to  whom  this  management  is  committed,  is,  as  it  were,  the 
general  attorney  of  his  partners  with  regard  to  the  property  and  affairs 
of  the  partnership. 

According  to  this  principle,  that  power  enables  a  person  to  do  all  acts 
and  make  all  bargains  necessary  for  the  affairs  of  the  partnership  ;  as 
for  instance,  to  receive  and  give  receipts  for  what  is  due  to  the  partnership 
from  its  debtors ;  to  take  the  necessary  proceedings  against  them  to 
obtain  payment ;  to  pay  what  is  due  to  creditors;  to  make  bargains  with 
P  *4fi  1  *servants  and  workmen  employed  in  the  service  of  the  part- 
-I  nership ;  to  make  purchases  necessary  for  its  affairs  ;  to  sell  the 
things  belonging  to  the  partnership  which  are  intended  to  be  sold,  and 
not  others :  for  example,  in  an  universal  partnership,  such  one  of  the 
partners,  to  whom,  by  a  clause  in  the  contract,  or  by  a  subsequent 
agreement,  the  management  of  the  partnership  is  given,  can  sell  all  the 
products  from  the  harvests  of  the  estates  belonging  to  the  partnership ; 
a  fall  of  coppice-wood,  if  it  is  at  an  age  fit  to  be  cut.  But  he  cannot  sell 
the  estates  nor  the  other  immoveable  property  belonging  to  the  partner- 
contained  in  article  1869  :  or  if  it  be  respecting  business  of  which  the  duration  is 
limited,  for  the  whole  time  which  such  business  lasts.  Civ.  Cod.  of  France, 
1844;  see  Art.  1865;  Civ.  Cod.  of  Louisiana,  2825.  Our  law  is  the  same  in  this 
respect.  Crawshay  v.  Maule,  1  Swanst.  521,  522,  523.  525;  Alcock  v.  Taylor, 
Tamlyn,  506. ;  Featherstonhaugh  v.  Fenwick,  IT  Ves.  299.  307,  308  ;  3  Kent.  Comm. 
52  ;  Coll.  Partn.  68.  As  to  the  continuation  of  a  partnership  after  the  death  of  a 
partner,  see  post. 

66  The  partner  charged  with  the  management,  by  a  special  clause  of  the  contract 
of  partnership,  may,  notwithstanding  the  opposition  of  the  other  partners,  do  all 
acts  belonging  to  his  management,  provided  it  be  without  fraud. 

Such  power  cannot  be  revoked  without  lawful  cause  whilst  the  partnership  lasts ; 
but  if  it  has  been  only  given  by  an  act  subsequent  to  the  contract  of  partnership, 
it  is  revocable  like  a  simple  mandate.  Civ.  Cod.  of  France,  1856;  See  Stor. 
Partn.  303  ;  3  Kent.  Comm.  45  ;  Const,  v.  Harris,  T.  &  R.  496.  517,  518.  521. 


CLAUSES     IN    PARTNERSHIP    CONTRACTS.  43 

ship,  nor  even  the  moveables  with  which  they  are  furnished  except  those 
of  a  perishable  nature,  if  kept.  Procurator  totorum  bonorum,  cui  res 
administrandse  mandatse  sunt,  res  domini  negue  mobiles,  vel  immobiles) 
neque  servos  sine  speciali  domini  mandato  alienare  potest,  nisi  fructus, 
aut  alias  res  quce  facile  corrumpi  possunt :  1.  63.  ff.  de  Procur.  (Dig. 
lib.  iii.  tit.  3,  1.  63.) 

67.  In  a  commercial  partnership  the  managing  partner  has  power  to 
sell  the  goods  of  the  partnership,  since  they  were  put  therein  only  for 
the  purposes   of  being  sold.     But  he  has  no  power  to  sell  the  house 
which  has  been   acquired  for   their  place  of  business,   nor   to   grant 
easements  upon  it :  he  cannot  even  sell  the  moveables  which  are  in  that 
house  as  fixtures;    as  for  instance   boiling-coppers,  looms,  and   other 
utensils  of  trade. 

68.  In  partnerships,  whether  universal  or  particular,   the  managing 
partner,  without  the  consent  of  the  others,  has  no  power  to  compromise  a 
«uit  of  the  partnership,  because  that  also  exceeds  the  power  of  a  person 
having  a  general  power  of  attorney :  Mandato  generali  non  contineri 
etiam  transactionem  decidendi  causa  interpositam  ;  1.  60,  ff.  de  Procur. 
(Dig.  lib.  iii.  tit.  3,  1.  63.) 

69.  However  extensive  may  be  the  power  of  managing  the  partner- 
ship affairs  conferred  by  the  clause  of  the  contract,  it  does  not  extend  to 
the  power  of  disposing  by  donation  of  the  effects  of  this  partnership. 

Nevertheless  ordinary  gifts  of  common  courtesy  are  not  forbidden. 

For  example,  in  a  universal  partnership,  the  managing  partner  can, 
without  consulting  his  co-partners,  make  to  *those  who  owe  r  ^ .,_  -. 
fines  on  alienation,  or  other  seignorial  dues  of  a  like  kind,  the  L 
necessary  returns  which  Seigneurs  are  accustomed  to  make  :  He  may 
give  (des  £trennes\  new  years'  gifts,  and  other  small  presents,  in  custo- 
mary and  proper  cases.  He  may  also  be  a  party  to  a  contract  (d^ater- 
moiement}  of  respite  or  composition  which  restrains  (des  saisies\  dis- 
tresses made  against  a  debtor  who  has  become  insolvent.  These  returns 
are  made  with  the  intention  of  economy,  in  order  to  prevent  a  total  loss 
rather  than  with  the  intention  of  making  a  donation. 

70.  The  principles  which  we  have  established?  are  subject  to  an  ex- 
ception :  First  with  regard  to  the  kind  of  universal  partnership,  or  com- 
munity of  goods  between  husband  and  wife.      The  husband  has  over  the 
property  of  which  it  is  composed,  a  power  not  of  manager,  but  of  absolute 
owner,  as  we  shall  see  in  my  "  Treatise  on  the  Contract  of  Marriage." 
Secondly,  with  regard  to  the  kind  of  universal  partnership  which  the  sur- 
vivor of  two  persons  united  by  marriage  contacts,  (faute  de^faire  inven- 
taire)  from  want  of  an  inventory;   although  the  survivor  is  not  absolute 
owner  of  the  property  of  that  community,  as  the  husband  is  of  that  of 
the  conjugal  community  (as  long  as  it  continues,  and  he  is  the  absolute 
manager  of  it);  he  has,  nevertheless,  a  power  of  management  so  extensive, 
that  he  can  generally  dispose  of  all  the  estates  and  other  property  of  the 
partnership  as  it  seems  good  to  him,  provided  that  it  be  not  by  donation, 
as  we  shall  see  in  my  "  Treatise  on  the  Contract  of  Marriage." 

Moreover,  even  in  ordinary  partnerships,  our  principles  are  subject  to 
an  exception,  when,  by  the  clauses  of  the  contract,  it  has  pleased  the 


44  POTHIER     ON    PARTNERSHIP. 

parties  to  give  more  extensive  power  to  him  whom  they  have  made  man- 
ager of  the  partnership. 

71.  Although  the  power  of  a  partner,  who,  by  a  provision  contained 
in  the  contract,  is  manager  of  the  partnership  property,  may  be  compared 
to  that  of  a  man  to  whom  another  may  have  given  a  general  power  of  at- 
torney to  manage  his  affairs,  we  must  observe  this  difference  between 
them.     The  power  of  the  latter  being  revocable,  according  to  the  nature 
of  the  contract  of  mandate,  he  may,  without  the  knowledge  of  the  person 
r  *18  ~\  w^°  ^as  g*ven  him  the  power  of  attorney,  do  all  *acts  belonging 

-I  to  the  management  which  have  been  confided  to  him,  the  person 
who  gave  him  the  power  of  attorney  being  presumed  to  consent  to  them  ; 
but  he  can  do  nothing  against  his  wish  and  against  his  dissent  of  which 
he  has  notice.  On  the  contrary,  the  power  of  management  which  is 
given  by  the  contract  to  one  of  the  partners,  being  one  of  its  conditions, 
he  having  only  consented  to  the  partnership  upon  condition  that  he  should 
have  its  management,  that  power  is  not  revocable  while  the  partnership* 
exists.  Therefore  it  is  that  such  partner  can  do,  even  against  the  wish 
and  in  spite  of  the  opposition  of  the  others,  all  the  acts  which  belong  to 
his  management,  provided  that  they  be  without  fraud,  and  for  the  good 
of  the  partnership. 

It  would  be  otherwise,  if  the  power  of  management  had  been  granted 
to  one  of  the  partners,  not  by  the  contract  of  partnership,  but  afterwards. 
He  would,  in  that  case,  be  only  a  simple  mandatory  of  his  copartners, 
liable  to  have  his  power  revoked,  and  able  to  do  nothing  contrary  to  their 
wishes. 

72.  The  management  of  the  affairs  of  the  partnership  is  sometimes 
given  by  the  contract  to  several  of  the  partners.     If  the  management 
has  been  divided  amongst  them,  as  if  one  has  been  (preposej  appointed 
to  make  purchases,  another  to  sell  goods,  each  of  them  can  only  do  the 
acts  which  belong  to  that  part  of  the  management  confided  to  him.     But 
if  the  management  has  not  been  divided  amongst  them,  each  of  them 
can,  separately  and  without  the  other,  legally  do  all  acts  which  belong  to 
the  management  of  the  partnership,  unless  the  clause  by  which  they  have 
been  (preposes\  appointed  express  that  they  are  not  to  do  anything  sep- 
arately. 

For  this  result  an  argument  may  be  drawn  from  what  is  decided  in 
the  law  1,  §  13  and  14,  ff.  De  Exercit.  Act.  (Dig.  lib.  xiv.  tit.  !,!.!,§ 
13,  14,)  with  respect  to  several  supercargoes  of  a  merchantman  :  Si 
r  *4Q  1  P^ures  s*nt  fnugistri  non  divisis  officiis,  *quodcunque  cum  uno 
-1  gestwn  erit,  dbligabit  exercitorem ;  si  divisis,  ut  alter  locando, 
alter  exigendo,  pro  cujusque  officio  obligabilur  exercitor :  sed  et  si  sic 
prceposuit,  ut  plerumque  faciunt,  "ne  alter  sine  altero  quid  gerat;'1 
qui  contraxit  cum  uno,  sibi  imputabit. 

"2  Where  several  partners  are  charged  with  management  without  their  duties 
being  definite,  or  without  its  being  expressed  that  one  cannot  act  without  the  other, 
they  may  each  separately  do  all  acts  of  management.  Civ.  Cod.  of  France,  1857. 
If  it  has  been  stipulated  that  one  of  the  managers  shall  do  nothing  without  the 
other,  one  of  them  cannot,  without  a  new  agreement,  act  alone  in  the  absence  of 
the  other,  even  though  it  shall  have  been  actually  impossible  for  the  latter  to  con- 
cur in  acts  of  management.  Civ.  Code  of  France,  1858. 


CLAUSES  IN  PARTNERSHIP  CONTRACTS.      45 

The  clause  that  one  of  the  managers  shall  not  do  anything  without  the 
other,  ought  to  be  observed  even  in  the  case  where  it  may  happen  that 
one  of  the  partners  is  prevented  from  acting  either  by  illness  or  otherwise, 
until  the  partners  have  come  to  a  different  arrangement. 

§  III.  As  to  the  Clauses  concerning  the  Shares  of  each  of  the  Partners  in 
Profits  and  Losses. 

73.  When  the  value  of  what  each  of  the  partners  has  brought  into  the 
partnership  is  apparent,  as  when  it  consists  *of  money,  or  of  effects  r  ^?n  -. 
upon  which  a  value  has  been  put,  it  is  not  necessary  to  express  L 
in  the  contract  what  is  to  be  the  share  of  each  in  the  profits  and  the 
losses,  as  in  such  case  it  will  be  in  the  same  proportion  as  he  has  contri- 
buted to  the  partnership. 

Although  a  certain  value  has  not  been  put  upon  what  each  brought 
into  the  partnership,  it  is  not  necessary  that  the  parties  should  express 
what  share  each  is  to  have,  if  it  is  their  intention  that  the  partnership 
shares  are  to  be  equal ;  because  a  distribution  by  equal  shares  will  take 
place  in  the  absence  of  any  expressed  intention  of  the  parties :  Si  non 

"3  When  the  deed  of  partnership  does  not  determine  the  share  of  each  partner  in 
the  profits  or  losses,  the  share  of  each  is  in  proportion  to  his  contribution  to  the 
capital  of  the  partnership. 

With  regard  to  the  individual  who  contributes  only  his  skill,  his  share  in  the 
profits  or  in  the  losses  is  regulated  as  if  his  contribution  had  been  equal  to  that 
of  the  partner  who  has  brought  in  the  least.  Civ.  Cod.  of  France,  1853.  Accord- 
ing to  our  law,  it  would  seem  that  in  the  absence  of  any  express  contract,  or  any 
dealing  from  which  a  contract  may  be  inferred,  as  to  the  shares  in  the  profits  and 
losses,  even  if  the  contributions  of  capital  be  unequal,  or  when  one  partner  may 
have  contributed  all  the  capital,  and  the  other  only  his  skill  and  labour,  the  shares 
will  be  equal.  See  Farrar  v.  Beswick,  1  M.  &  Rob.  527  ;  and  see  Peacock  v.  Pea- 
cock, 16  Yes.  56;  where  Lord  Eldon  disapproved  of  the  opinion  of  Lord  Ellen- 
borough  on  the  trial  of  an  issue,  who  thought  that  the  shares  ought  to  be  ascer- 
tained by  a  jury  on  the  footing  of  a  quantum  meruit ;  and  see  Webster  v.  Bray,  7 
Hare,  159.  174.  178,  179  ;  Stewart  v.  Forbes;  1  Hall  &  T.  461.  472  ;  1  Mac.  and 
Gord.  137,  where  Lord  Eldon's  doctrine  has  been  adopted.  Lord  Ellenborough's 
views,  however,  were  approved  of  in  the  House  of  Lords  by  Lords  Wynford  and 
Brougham,  with  regard  to  a  case  from  Scotland,  who  were  of  opinion  that  where 
there  is  no  express  contract  between  partners,  it  is  not,  according  to  the  law  of 
Scotland,  a  necessary  presumption  of  law  that  the  profits  are  to  be  divided  in  equal 
shares,  but  that  it  is  a  question  for  a  jury,  upon  evidence  of  all  the  circumstances 
(as  good  will,  skill,  capital,  labour,  &c.,)  what  the  proportion  of  interest  in  the 
profits  and  losses  should  be.  Thompson  T.  Williamson,  7  Bligh,  N.  R.  432. 
See  Stor.  Partn.  30.  But  where  there  has  been  a  contract  as  to  the  shares  the 
partners  are  to  take,  and  there  is  a  difficulty  in  ascertaining  what  it  really  was,  an 
issue  may  be  directed  for  the  consideration  of  a  jury.  M'Gregor  v.  Bainbrigge,  7 
Hare,  164,  n.  It  seems  that  the  American  authorities,  as  far  as  they  go,  are  in 
favour  of  Lord  Eldon's  doctrine.  Gould  v.  Gould;  Wend.  263;  3  Kent.  Comm. 
28.  Pothier  has  indeed  observed  (see  ante,  n.  15,  n.  29,)  that  equity  requires  in 
general  the  share  of  a  partner  in  the  profits  to  be  in  proportion  to  the  value  of  what 
he  has  brought  into  the  partnership,  whether  it  be  money,  goods,  labour,  or  skill  ; 
the  rule,  however,  laid  down  by  Lord  Eldon  does  not  contravene  that  requirement 
of  equity  or  natural  justice,  for,  as  in  many  cases,  the  skill  of  one  partner,  contri- 
buting a  smaller  share  or  even  no  share  to  the  capital,  may  be  equal  in  value  to 
the  capital  contributed  by  the  other,  in  the  absence  of  any  stipulation  as  to  the 
interest  of  the  parties  in  the  profits,  they  are  presumed  to  have  considered  that 
their  respective  contributions,  even  when  there  is  only  skill  on  one  side  and  capi- 
tal on  the  other  to  have  been  equal. 


46  POTHIERONPARTNERSIIIP. 

fuerint  paries  societati  adjertce  sequas  eas  esse  constat ;  1.  29,  if.  pro  Soc. 
(Dig.  lib.  xvii.  tit.  2,  s.  29.) 

But  when  it  is  the  intention  of  the  contracting  parties  not  to  distribute 
the  partnership  by  equal  shares,  and  moreover  they  have  not  put  a  cer- 
tain valuation  upon  what  each  has  contributed ;  in  that  case,  it  is  neces- 
sary by  a  clause  in  the  contract  of  partnership  to  regulate  the  shares  of 
each  in  the  capital,  and  in  the  gains  and  losses. 

In  like  manner,  if,  besides  the  sum  which  each  of  the  partners  has  con- 
tributed, either  in  money  or  in  effects,  on  which  a  value  has  been  put, 
one  of  them  has  brought  into  the  partnership  a  skill  which  is  peculiar  to 
him,  on  account  of  which  he  asks  to  have  either  a  greater  share  than  the 
others  in  the  profits,  or  to  incur  a  smaller  share  of  the  losses,  the  amount 
of  such  share  must  be  regulated  by  a  clause  in  the  contract.  With  re- 
gard to  the  equity  or  inequity  of  the  clauses  which  regulate  the  share  of 
each  of  the  partners  in  the  gains  or  in  the  losses,  see  what  I  have  before 
said,  supra,  c.  1,  §  4. 

_  #...  -.  *74.  Sometimes  the  parties  do  not  themselves  regulate  the 
-I  shares  that  each  is  to  have,  but  they  agree  by  the  contract  of 
partnership  to  abide  by  the  regulation  of  a  particular  person,  or  even 
sometimes  of  one  of  themselves.  But  the  regulation  which  they  agree 
to  abide  by  must  not  be  understood  to  be  of  a  purely  arbitrary  character, 
but  one  which  is  to  be  made  according  to  the  rules  of  equity ;  Arbi- 
trium  boni  viri ;  11.  76,  77,  78,  fF.  pro  Soc.  (Dig.  lib.  xvii.  tit.  2,  s.  76, 
77,  78.) 

If  therefore  the  regulation,  made  by  (V expert}  the  expert  to  whom  they 
have  referred  the  matter,  is  clearly  inequitable,  the  injured  party  may 
have  it  reformed  :  Si  arbitrium  ita  pravum  est,  ut  manifesto  iniquitas 
ejus  appareat,  corrigi  potest  per  judicium  bonaejidei ;  1.  79,  ibidem  (Dig. 
lib.  xvii.  tit.  2,  s.  79.) 

But  unless  the  inequitableness  of  the  regulation  be  evident,  the  pre- 
sumption is  in  favour  of  its  equity,  and  neither  of  the  parties  can  be 
heard  to  complain. 


§  IV.  Of  the  Clauses  which  concern  the  manner  of  recompensing  one  of 
the  Partners,  who  although  they  are  Partners  for  equal  Shares,  has 
brought  more  than  the  others  into  the  Partnership. 

75.  That  which  one  of  the  partners  has  brought  into  the  partnership 
more  than  the  others,  either  consists  solely  in  his  skill  or  labour,  or  in  a 
greater  capital,  in  goods  or  money.  When  it  consists  of  his  skill,  which 
has  not  been  taken  into  consideration  in  the  regulation  of  the  shares  of 

?4  If  the  partners  have  agreed  to  refer  the  regulation  of  the  shares  to  one  of 
themselves,  or  to  a  third  person,  such  regulation  cannot  be  impeached  unless  it  be 
evidently  contrary  to  equity. 

No  claim  is  admitted  on  this  subject,  if  more  than  three  months  have  elapsed 
since  the  party  who  thinks  himself  aggrieved  has  had  notice  of  the  regulation  ;  or 
if,  on  his  side,  there  has  been  a  part  performance  of  such  regulation.  Cod. 
Civ.  of  France,  1854. 


CLAUSES     OF    PARTNERSHIP     CONTRACTS.  47 

each  of  the  partners  in  the  profits,  he  can  be  recompensed  for  it  in  many 
ways.  For  example,  if  three  partners  have  contributed  in  money  or  in 
goods  each  50,000  livres,  to  form  a  partnership  in  which  they  are  each 
to  have  a  third,  and  one  of  them  has  contributed  to  it  beyond  what  the 
others  have  done  his  *peculiar  skill,  and  the  labour  which  he  has  r  ^zn  -\ 
undertaken  in  the  business  of  the  partnership :  1st,  It  may  be  "- 
agreed  that  in  recompense  for  his  skill  and  labour  he  shall  bear  no  loss 
which  he  would  otherwise  have  to  suffer,  in  case  the  partnership  was  un- 
successful, or  that  he  should  suffer  a  smaller  proportion  of  the  losses  than 
the  third,  which  he  would  have  in  the  profits  if  the  partnership  was  pros- 
perous. We  have  seen,  infra,  chap.  i.  §  4,  that  such  an  agreement  is 
equitable  when  the  value  of  his  skill  and  labour  is  equal  to  the  value  of 
his  discharge  from  the  risk  of  bearing  the  same  proportion  of  the  losses 
which  has  been  assigned  to  him  in  the  profits. 

2ndly.  When  such  partner  participates  in  a  third  of  the  losses,  as  well 
as  of  the  profits,  the  other  partners  may  recompense  him  otherwise  for 
his  additional  skill  and  labour  which  he  contributes  to  the  partnership, 
by  agreeing  that  he  shall  receive  every  year  from  the  partnership  funds 
a  certain  sum,  at  which  the  contracting  parties  shall  have  valued  such 
skill  and  labour. 

The  skill  and  labour  of  such  partner  may  also  be  valued  at  a  certain 
sum  only,  which  he  is  to  take  from  the  capital,  at  the  distribution  made 
amongst  the  partners  at  the  termination  of  the  partnership. 

76.  When  one  of  the  partners  has  brought  more  than  the  others,  in 
money  or  in  goods,  to  a  partnership  in  which  the  profits  are  to  be  equally 
divided,  it  is  generally  agreed  that  upon  the  distribution  at  the  determi- 
nation of  the  partnership,  such  partner  shall  withdraw  that  sum,  with  in- 
terest thereon,  for  each  year  of  its  duration. 

This  agreement  is  often  entered  into  when  a  tradesman  gives  one  of 
his  children  in  marriage.  For  example  a  tradesman,  who  has  capital  to 
the  amount  of  450,000  livres  in  money,  debts  due  to  him,  and  goods 
(deduction  faite  du  passif^  after  deducting  the  debts  he  owes,  withdraws 
50,000  livres  to  give  to  his  son  on  his  marriage,  and  takes  him  into  part- 
nership in  trade  with  him  for  ten  years,  and  although  his  son  has  con- 
tributed to  the  partnership  50,000  livres  which  he  received  from  his  father, 
and  an  equal  sura  which  his  wife  brought  to  him  as  her  dowry  (making 
in  the  whole  100,000  livres),  and  his  father  has  contributed  to  it  his  re- 
maining *400,000  livres ;  nevertheless,  he  takes  his  son  into  part-  r  #e.q  -, 
nership  for  the  half  of  his  business,  instead  of  the  fifth,  which  he  L 
ought  only  to  have  in  it,  having  only  brought  for  his  share  a  sum  of 
100,000  livres,  which  is  the  fifth  of  the  capital  of  the  partnership.  To 
recompense  the  father  for  the  300,000  livres  which  he  has  contributed 
to  the  partnership  more  than  the  son,  it  is  agreed  in  the  contract  of  part- 
nership inserted  in  the  marriage  contract,  that  the  father,  at  the  termina- 
tion of  the  partnership,  shall  withdraw,  on  the  distribution,  the  sum  of 
300,000  livres,  with  interest  upon  that  sum,  for  every  year  of  the  dura- 
tion of  the  partnership. 

It  has  been  brought  into  question  whether  such  interest  is  legitimate. 
Some  theologians  think  that  it  is  usurious,  and  that  the  father  ought  not, 

SEPTEMBER,  1854. — 29 


48  POTHIER    ON    PARTNERSHIP. 

in  conscience,  to  require  it.  They  say  that  such  arrangement  compre- 
hends a  loan  from  the  father  of  that  sum  of  300,000  livres  to  the  part- 
nership; that  such  sum,  not  being  alienated,  since  he  has  a  right  to 
require  it  at  the  end  of  the  partnership,  and  running  no  risk  with  respect 
to  it,  since  it  is  to  be  returned  to  him  by  the  partnership  without  any 
diminution,  whatever  losses  the  partnership  may  have  suffered,  he  can- 
not, without  usury,  require  any  interest.  I  do  not  think  this  opinion  is 
right.  There  is  no  usury,  except  in  a  contract  for  a  loan,  whether  formal 
or  disguised  under  the  false  appearance  of  another  contract.  This  agree- 
ment is  neither  a  formal  nor  a  disguised  loan.  The  father  never  having 
had  any  intention  of  making  a  loan  to  his  son,  it  is  only  a  clause  of  a 
contract  of  partnership,  of  which  it  forms  a  part,  and  it  contains  nothing 
unjust.  The  sum  of  300,000  livres  which  the  father  has  more  than  his 
son  in  the  partnership  is  capital  in  trade,  and  is  a  fruitful  thing,  which 
produces  considerable  profits,  which  are,  as  it  were,  its  fruits. 

The  father,  who  alone  ought  to  have  the  profits,  which  he  had  reason 
to  expect  that  such  capital  of  300,000  would  produce,  since  he  has 
contributed  that  sum  beyond  what  each  of  the  other  partners  has  brought 
into  the  partnership,  nevertheless  abandons  these  profits  to  the  partner- 
ship, and  he  receives  therefrom,  as  the  price  of  the  said  profits,  the  inte- 

,. ,  ..  rest  of  that  sum.  If  he  is  discharged  from  the  risk  of  the  losses 
-I  *which  he  would  bear  with  respect  to  that  sum  in  case  of  mis- 
fortune, it  is  because  the  profits,  which  he  had  reason  to  expect  from  a 
thriving  trade,  being  much  more  considerable  than  the  interest  of  the 
money,  and  the  expectation  of  these  profits  being  much  more  probable 
than  the  risk  of  loss  in  case  of  misfortune,  the  estimate  of  the  expecta- 
tion of  the  said  profits,  subject  to  the  deduction  of  the  value  of  the  risk 
of  loss  which  he  may  fear,  and  from  which  the  father  is  discharged, 
might  fairly  amount  to  the  interest  of  the  money. 

A  proof  that  this  agreement  is  not  inequitable  to  the  son,  is  that, 
among  tradesmen,  these  kinds  of  arrangements  are  regarded  as  advan- 
tageous for  the  son.  If  the  father  consulted  only  his  own  interest,  he 
would  much  rather  admit  his  son  into  the  partnership  only  for  a  fifth 
than  admit  him  for  a  moiety  on  this  condition ;  and  it  is  ordinarily  the 
family  of  the  bride  which  requires  this  arrangement  as  a  condition  of 
the  marriage. 


FOURTH    CHAPTER. 

As  to  the  Persons  who  can  enter  into,  and  the  Forms  required  by  our 
Law  for,  the  Contract  of  Partnership. 


ARTICLE. 

Of  the  Persons  who  can  enter  into  the  Contract  of  Partnership. 
11.  WITH  respect  to  the  persons  who  can  enter  into  the  contract  of 
<7  A  universal  partnership  can  only  take  place  between  persons  respectively 


CONTRACT    OF    PARTNERSHIP.  49 

partnership,  I  refer  to  the  general  principles  *established  in  my  r  „- -  -, 
"Treatise  on  Obligations,"  Part  I.  chap.  i.  §  1,  art.  4,  where  I  L 
have   treated  of  the  persons  who  can  or  cannot  enter  into  a  contract, 
there  being  nothing  peculiar  in  this  respect  in  the  contract  of  partner- 
ship. 

I  will  only  observe,  with  respect  to  minors  who  are  traders  or  bankers 
by  profession,  that  the  Ordonnance  of  1673,  tit.  i.  art.  6,  considering 
them  of  age  as  far  as  regards  the  carrying  on  of  their  trade  and  banking 
without  their  being  able  to  claim  restitution,  on  the  grounds  of  their 
minority,  they  are  consequently  of  capacity  to  contract  partnerships  for 
the  carrying  on  of  their  trade  without  the  expectation  of  restitution. 

SECOND    ARTICLE. 

Of  the  Forms  required  for  the  Contract  of  Partnership. 

78.  The  contract  of  partnership  being  a  contract  of  natural  right, 
governed  only  by  the  principles  of  natural  law,  and  a  consensual  con- 
tract, formed  solely  by  the  consent  of  the  parties,  it  is  not  in  itself  sub- 
ject to  any  form.  Those  which  our  *Law  requires  for  this  con- 
tract  are  required  only  for  its  proof,  and  not  for  its  substance. 

It  is  necessary  in  this  respect,  to  distinguish  universal  from  particular 

capable  of  giving  and  receiving  to  or  from  each  other,  and  to  whom  it  is  not  for- 
bidden to  derive  advantage  to  the  prejudice  of  other  persons.  Civ.  Cod.  of  France, 
1840. 

In  England,  the  principles  applicable  to  ordinary  contracts  decide  in  general 
who  may  or  may  not  enter  into  the  contract  of  partnership.  Hence  all  persons 
sui  juris,  unless  prohibited  by  law  from  doing  so,  may  enter  into  such  contract. 
Even  in  the  case  of  an  infant,  as  it  may  turn  out  for  his  benefit,  it  is  not  void,  but 
only  voidable;  for  if,  after  having  attained  his  majority,  he  either  expressly  inti- 
mates his  desire  to  remain  a  partner,  or  does  so  impliedly,  by  his  neglect,  within 
a  reasonable  time,  to  repudiate  the  contract,  he  will  be  considered  to  have  affirmed 
it;  and  his  liability  as  a  partner,  for  partnership  contracts  entered  into  by  the 
firm  during  his  minority,  will  attach.  (Holmes  v.  Blogg,  8  Taunt.  35 ;  Goode  v. 
Harrison,  5  Barn.  &  Aid.  147.  156 ;  and  see  Baylis  v.  Dineley,  3  Mau.  &  !Sel.  477  ; 
Keane  v.  Boycott,  2  H.  Black.  511,  514,  515;)  but  in  all  events  an  infant  would 
be  liable  to  third  parties,  if  he  should  fraudulently  hold  himself  out  as  a  partner 
when  he  was  not  so  (Goode  v.  Harrison,  5  Barn.  &  Aid.  147.  152.  157,  158  ;)  or  if, 
being  a  partner,  he  should  fraudulently  hold  himself  out  to  the  world  as  being  of 
full  age. 

Married  women,  by  Common  Law,  are  disabled  from  entering  into  the  contract 
of  partnership,  unless  by  some  special  custom,  as  by  that  of  London  (Beard  v. 
Webb,  2  Bos.  &  Pull.  93  ;  Burke  v.  Winkle,  2  Serg.  &  Rawle,  189  ;)  or  by  the  civil 
death  of  the  husband  in  consequence  of  profession,  or  abjuration  of  the  realm 
(Beard  v.  Webb,  2  Bos.  &  Pull.  93.  105 :  Lean  v.  Schutz,  2  Wm.  Bl.  1195  ;  or  by 
the  suspension  of  his  marital  rights  by  transportation  for  a  term  of  years  (Sparrow 
v.  Carruthers,  cited  2  Wm.  Bl.  1197;  1  T.  R.  6,  7;  1  Bos.  &  Pull.  359;  Carroll  v. 
Blencow,  4  Esp.  27  ;  S.  C.  cited  11  East,  303  ;  Marshy.  Hutchinson,  2  BOS.&  Pull. 
231,  232,  233;)  or  if  she  be  the  wife  of  an  alien  who  has  never  come  within  the 
realm.  De  Gaillon  v.  L'Aigte,  1  Bos.  &  Pull.  357  ;  Kay  v.  Duchesse  de  Pienne,  3 
Campb.  123. 

In  Equity,  however,  if  a  woman  is  possessed  of  separate  property,  she  may,  it  is 
conceived,  enter  into  a  contract  of  partnership,  so  as  to  bind  such  property, 
although  it  would  not  be  binding  as  against  her  personally.  See  Hulme  v.  Tenant, 
1  Lead.  Gas.  Eq.  324,  and  note;  Cecil  v.  Juxon,  1  Atk.  278  ;  Lamphir  v.  Creed,  8 
Ves.  599. 


50  POTHIER    ON     PARTNERSHIP. 

partnerships;  and  amongst  particular  partnerships,  those  which  are  com- 
mercial from  those  which  are  not. 

§  1.    Of  the  Forms  required  for  Universal  Partnerships. 

79.  By  the  ancient  French  law  partnerships  were  not  subject  to  any 
forms.   Not  only  was  it  unnecessary  that  a  written  deed  (qu'il  enfut  dresse} 
should  be  prepared,  it  was  not  necessary  even  that  there  should  be  an 
express  agreement  for  it;  the  parties   were  presumed  to  have  tacitly 
entered  into  this  partnership  when  they  had  dwelt  and  lived  in  common 
for  a  year  and  a  day. 

Many  customs  have  yet  retained  the  use  of  these  partnership,  which 
are  called  (societes  taisiblcs)  tacit  partnerships;  there  is  one  which  is 
presumed  from  cohabitation  alone  (a  pot  commun)  at  the  same  table  for 
a  year  and  a  day. 

That  of  Berry,  tit.  8,  art.  10,  provides  that  in  order  to  raise  a  pre- 
sumption of  such  partnership,  beyond  habitation  and  common  expenses 
for  a  year  and  a  day,  the  parties  should,  during  that  time,  have  shared 
each  other's  losses. 

80.  Besides  these  customs,  which  have,  by  express  dispositions,  ad- 
mitted tacit  partnerships,  we  do  not  admit  in  our  jurisprudence  any  other 
tacit  partnerships,  except  the  community  of  goods  which  is  contracted  by 
marriage  between  a  man  and  a  woman,  and  the  continuation  of  commu- 
nity which  sometimes  take  place  in  default  of  the  survivor  having  made 
an  inventory,  of  which  I  shall  treat  in  my  Treatise  on  the  Contract  of 
Marriage. 

This  jurisprudence  is  founded  on  the  Ordonnance  of  Moulins,  art.  54, 
which  has  ordained  that  all  agreements  of  which  the  object  shall  exceed 
100  livres  shall  be  reduced  into  writing,  and  that  the  proof  thereof  by 
witnesses  shall  not  be  admitted. 

Even  before  the  Ordonnance  of  Moulins  many  customs  had  rejected 
these  tacit  partnerships.  The  ancient  custom  of  Orleans  (rediyee) 
r  ^r-  -,  digested  in  1509,  art.  80,  says:  *'< Partnership  is  not  contracted 
J  between  any  persons  who  are  not  united  by  marriage,  unless 
there  is  an  express  agreement  between  them;"  and  the  new  custom,  con- 
formable to  the  Ordonnance  of  Moulins,  has  added  (passee)  »  reduced 
into  writing  in  the  presence  of  notaries,  or  under  their  signatures,"  art. 
213. 

81.  Writing,  as  we  have  already  said,  is  only  required  for  proof  of 
the  contract  of  partnership,  where  one  of  the  parties  should  not  admit  it; 
but  the  contract  of  partnership,  formed  by  the  sole  consent  of  the  parties, 
although  not  reduced  to  writing,  is  nevertheless  binding  in  itself,  and  ob 
ligatory  upon  the  parties  in  foro  conscientice,  and  even  in  strict  law,  when 
they  have  admitted  it ;  and  the  decisory  oath  (serment  decisoire\  may  be 
also  put  to  the  party  who  may  not  be  willing  to  do  so. 

Observe,  that  the  deed  of  partnership,  whilst  it  has  only  been  (passed 
executed  under  the  private  signatures  of  the  contracting  parties,  establishes 
the  proof  of  the  contract  of  partnership  between  them  only,  and  not  with 
respect  to  a  third  party.  For  this  reason  the  custom  of  Orleans  in  the 


CONTRACT    OF    PARTNERSHIP.  51 

article  above  cited,  adds,  "  Whenever  it  shall  not  have  been  executed 
(passee)  before  notaries,  it  can  only  prejudice  the  contracting  parties/' 
For  example,  I  should  not  be  able,  in  virtue  of  a  deed  of  partnership, 
executed  between  you  and  myself  under  our  private  signitures  (seigns-pri- 
fe's),  to  urge  as  against  your  separate  creditors  who  have  seized  your 
effects,  that  there  is  a  partnership  between  us  to  which  the  said  effects 
belong,  and  upon  which  (f  ai  privelege}  I  have  a  prior  claim  for  what  is 
due  to  me  by  that  partnership.  This  is  founded  upon  the  principle  es- 
tablished in  my  "  Treatise  on  Obligations/'  n.  750,  that  deeds  under  pri- 
vate signatures,  being  liable  to  be  ante-dated,  (ne  font  pas  foi)  are  not 
considered  evidence  as  to  their  dates  against  third  parties,  unless,  indeed, 
the  date  of  it  has  been  (constatee)  verified,  for  instance,  by  the  decease 
of  one  of  the  parties  who  had  signed  those  deeds. 

*§  II.    Of  the  Form  required  for  Commercial  Partnerships.  [  *58  ] 
82.  The  Ordonnance  of  Commerce  of  1673,  tit.  4,  art.  1,  provides,  that 

82  The  capital  of  the  anonymous  partnership  is  divided  into  shares,  and  even 
into  coupons  of  a  share  of  equal  value.  Comm.  Cod.  of  France,  34.  The  share 
may  be  established  under  the  form  of  a  certificate  to  the  bearer.  In  that  case  the 
transfer  is  made  by  the  delivery  of  the  certificate.  Ib.  35. 

The  property  in  shares  may  be  established  by  an  inscription  in  the  registers  of 
the  partnership. 

In  that  case,  the  transfer  is  made  by  a  declaration  of  transfer  inscribed  in  the 
registers,  and  signed  by  him  whp  makes  the  transfer,  or  by  one  acting  under  a 
power.  Ib.  36. 

The  anonymous  partnership  can  only  exist  with  the  authority  of  the  King  and 
with  his  approbation  of  the  Act  which  constitutes  it.  This  approbation  must  be 
given  in  the  form  prescribed  by  the  regulations  of  the  public  administration. 
Ib.  37. 

The  capital  of  partnerships  en  commandite  may  also  be  divided  into  shares 
without  any  derogation  to  the  rules  established  for  that  kind  of  partnership.  Ib. 
38. 

The  partnership  en  nom  colleclifor  en  commandite  must  be  verified  by  public  acts, 
or  under  private  signature,  conforming  in  the  latter  case  to  the  article  1325,  of  the 
Civil  Code.  Ib.  39. 

The  names  of  the  partners  in  a  partnership  en  nom  collectif  can  only  be  made  use 
of  in  the  designation  of  the  firm.  Ib.  21. 

Anonymous  partnerships  can  only  be  formed  by  public  acts.     Ib.  40. 

No  proof  by  witnesses  can  be  admitted  against  or  beyond  the  contents  of  the 
acts  of  partnership,  nor  as  to  what  may  be  alleged  to  have  been  said  before,  at,  or 
since  the  execution  of  the  acts,  although  the  question  may  be  concerning  a  sum 
below  150  francs.  Comm.  Cod.  of  France,  41. 

The  extracts  from  the  acts  of  partnership  en  nom  collectif  and  en  commandite 
must  be  transmitted  within  a  fortnight  from  their  date  to  the  Registrar  of  the  Tri- 
bunal of  Commerce  of  the  district  in  which  the  house  of  (commerce  social)  partner- 
ship business  is  established,  to  be  transcribed  in  the  Register,  and  posted  up  in  the 
hall  of  audience  during  three  months.  If  the  partnership  has  several  houses  of 
business  in  different  districts,  the  transmission,  transcription,  and  the  posting  up 
of  the  extract,  must  be  performed  at  the  Tribunal  of  Commerce  of  each  district. 
Each  year  in  the  first  fortnight  of  January,  the  Tribunal  of  Commerce  shall  desig- 
nate one  or  more  journals  at  the  chief  place  of  their  jurisdiction,  in  one  or  more 
newspapers ;  and  in  default  of  such,  at  the  nearest  town,  in  which  shall  be 
inserted,  within  a  fortnight  from  their  date,  the  extracts  from  acts  of  part- 
nership en  nom  colectif  or  en  commandite,  and  shall  regulate  the  tariff  for  the 
printing  of  these  extracts.  This  insertion  may  be  proved  by  a  copy  of  the  journal 
certified  by  the  printer,  legalised  by  the  may  or,  and  registered  within  three  months 
from  its  date.  These  formalities  must  be  observed  under  pain  of  nullity  with  re- 


52  POTHIER    ON    PARTNERSHIP. 

every  partnership,  whether  general  or  en  commandite,  *should  be 

L        -I  reduced  into  writing  before  notaries,  or  under  private  signature  ; 

,      and  that  no  proof  of  it  could  be  *received  against  or  beyond  the 

L        J  contents  of  the  deed,  even  if  it  should  be  of  a  value  less  than  100 

livres. 

It  ordains,  moreover,  that  an  extract  of  the  deed  of  partnership  should 

gard  to  the  parties  interested ;  but  the  default  of  any  of  them  cannot  be  set  up  by 
the  partners  against  third  parties.  Ib.  42. 

The  extract  must  contain  the  names — Christian  names — condition  and  dwellings 
of  the  partners,  except  the  shareholders,  or  commanditaires  ;  the  commercial  style 
of  the  firm;  the  designation  of  those  of  the  partners  authorised  to  act,  manage, 
and  sign  for  the  partnership  ;  the  amount  of  the  capital  furnished  or  to  be  furnished, 
by  shares  or  en  commandite;  the  period  for  the  commencement  and  termination  of 
the  partnership.  Ib.  43. 

The  extract  from  the  acts  of  partnership  is  signed,  as  concerns  the  public  acts, 
by  the  notaries  ;  and  as  to  the  acts  under  private  signature  by  all  the  partners,  if 
the  partnership  be  en  nom  collectif,  and  by  the  managing  partners  (solidaires)  jointly 
and  severally  liable,  if  the  partnership  be  en  commandite,  whether  it  be  divided  or 
not  into  shares.  Ib.  44. 

The  ordinance  of  the  King,  authorising  anonymous  partnerships,  should  be  posted 
up  with  the  act  of  partnership  and  during  the  same  time.  Ib.  45. 

Every  continuation  of  a  partnership,  after  the  expiration  of  its  term,  must  be 
verified  by  a  declaration  of  the  co-partners.  This  declaration  and  all  acts  dissolv- 
ing partnership  before  the  term  fixed  for  its  duration  by  the  act  which  establishes 
it,  every  change  or  retirement  of  partners — all  new  stipulations  or  clauses,  all 
changes  in  the  style  of  the  partnership,  are  subject  to  the  formalities  prescribed  by 
the  articles  42,  43,  44.  In  case  of  the  omission  of  these  formalities,  the  penal 
provisions  of  the  last  paragraph  of  article  42,  will  become  applicable.  Ib.  46. 

Associations  in  participations  may  be  established  by  what  appears  from  the 
books,  correspondence,  or  by  testimony,  if  the  Tribunal  decides  that  it  is  admissible. 
Ib.  49. 

The  commercial  associations  in  participation  are  not  subject  to  the  formalities 
prescribed  for  other  partnerships.  Ib.  50. 

Troplong,  in  order  the  better  to  explain  the  nature  of  the  association  in  partici- 
pation, has  shown  in  what  different  combinations  it  is  generally  in  use.  One  may 
be  here  given  : — A  ship  arrives  from  America  at  Bordeaux,  laden  with  merchan- 
dise. A  merchant  at  that  port  sends  to  his  correspondent  at  Bayonne  a  detail  of 
the  cargo,  and  proposes  to  buy  with  him  a  lot  of  coffee,  likely  to  be  resold  to  great 
advantage,  asking  him  to  say,  in  case  he  answered  in  the  affirmative,  what  share 
he  would  take  in  that  speculation.  The  Bayonne  merchant  answers,  that  he  will 
take  a  third,  and  will  bear  that  proportion  in  the  profits  and  losses.  The  Bordeaux 
merchant  then  makes  the  purchase  in  his  own  name,  and  thereby  an  association 
in  participation  is  formed,  which  is  also  called  compte  en  participation,  because  it 
resolves  itself  into  an  account  between  the  two  merchants.  Troplong  observes  in 
this  case  :  "  It  is  clear  that  the  Bordeaux  merchant  who  purchased  the  lot  of  coffee 
from  the  master  will  be  alone  liable  to  him ;  the  Bayonne  merchant,  on  the  con- 
trary, will  have  contracted  no  obligation  ;  and  if  the  former  happen  to  fail,  the 
seller  can  have  no  recourse  against  the  participant.  In  like  manner,  in  case  of 
the  failure  of  the  Bordeaux  merchant,  as  against  his  personal  creditors,  the  cor- 
respondent at  Bayonne  cannot  lay  claim  to  the  merchandise  bought  in  participa- 
tion. He  will  have  no  more  right  than  the  others,  and  will  come  with  them  (au 
marc  le franc];  and  as  such  an  association  does  not  interest  the  public,  it  has  no 
need  of  being  registered." — Troplong,  Droit  Civil  Explique  Contrat  de  Societe',  vol. 
i.  p.  448.  The  same  author  afterwards  adds  (p.  473),  with  reference  to  what 
Pothier  lays  down  as  to  the  obligations  of  the  participant :  That  his  opinion  is  in- 
variably followed  in  France.  That  participation  has  not  the  privilege  of  partner- 
ship en  commandite,  as  the  participant  is  bound  to  the  whole  extent  of  the  losses 
incurred,  that  is  to  say  to  his  partner  alone,  unless  there  be  an  express  stipulation 
to  the  contrary,  which  would  be  respected,  as  the  Article  48  of  the  Commercial 
Code  admits  of  all  agreements  which  are  not  contrary  to  good  faith  and  public 
order. 


CONTRACT    OF    PARTNERSHIP.  53 

be  registered  at  the  registry  of  the  consulate ;  or  if  there  be  no  consulate 
in  the  town,  in  the  registry  of  the  Hotel  de  Ville,  or  in  that  of  the  or- 
dinary jurisdiction,  and  that  it  should  be  inserted  on  a  tablet  and  posted 
up  in  a  public  place ;  (art.  2). 

This  extract  ought  to  contain  the  names,  surnames,  rank,  and  dwell- 
ings of  the  partners,  the  extraordinary  clauses  for  the  signature  of  deeds, 
if  there  be  any  (suppose,  for  instance,  that  a  certain  one  only  among  the 
partners  has  power  to  sign  the  deeds  in  order  to  bind  the  partnership) ; 
the  time  at  which  the  partership  is  to  commence  and  terminate  (art.  3). 

These  extracts  ought  to  be  signed  by  the  parties,  or  by  those  ( qui  au- 
raient  souffert  la  societe}  who  have  assented  to  the  partnership,  by  the 
instrumentality  of  persons  with  powers  of  attorney  who  have  contracted 
for  them  (art.  3).  This  is  the  explanation  that  Savary,  who  drew  the 
plan  of  the  Ordonnance,  gives  of  theseterms.  Deeds  containing  a  change 
of  partners,  or  novel  clauses,  are  subjected  by  the  Ordonnance  to  the  same 
formalities. 

These  formalities,  according  to  Savary,  were  prescribed  to  obviate 
frauds,  and,  in  case  of  the  insolvency  of  any  of  the  partners,  to  prevent 
the  others  concealing  themselves  from  the  knowledge  of  the  creditors, 
and  avoiding  payment  of  the  debts  of  the  partnership  by  which  they  are 
bound. 

The  Ordonnance  requires  these  formalities,  under  penalty  of  nullity  of 
the  deeds,  as  well  between  the  partners  as  with  regard  to  their  creditors  (art. 
2);  and  it  provides,  that  the  partnership  should  only  have  effect  with  re- 
gard to  the  partners,  *their  widows,  heirs,  and  creditors,  from  the  p  #-,-i  -. 
day  of  registration  (art.  6). 

Although  the  provisions  of  the  Ordonnance  are  so  precise,  the  author 
of  the  notes  upon  Bornier  tells  us,  that  these  formalities  of  registration 
at  the  registry,  and  the  posting  up  on  a  tablet,  have  fallen  into  disuse, 
and  are  no  longer  observed. 

§  III.    On  particular  Partnerships  which  are  not  Commercial  Partner- 
ships. 

83.  Particular  partnerships,  which  are  not  commercial,  are  only  subject 
to  the  law  common  to  all  agreements,  which  requires  that  they  should 
be  reduced  into  writing,  and  that  testimonial  proof  thereof  cannot  be  re- 
ceived when  the  object  exceeds  the  sum  of  100  livres. 

For  this  reason,  if  there  were  a  partnershipof  a  particular  thing  whose 
value  does  not  exceed  100  livres,  it  would  not  be  necessary  that  there 
should  be  a  deed  in  writing. 

83  Every  partnership  must  be  reduced  to  writing  when  the  object  is  of  a  value 
exceeding  one  hundred  and  fifty  francs. 

Testimonial  proof  is  not  admitted  against  or  beyond  what  is  contained  in  the  act 
of  partnership,  nor  touching  that  which  shall  be  alleged  to  have  been  said  before, 
at  the  time  of,  or  subsequent  to  such  act,  although  the  question  be  concerning  a 
sum  or  value  less  than  one  hundred  and  fifty  francs.  Civ.  Cod.  of  France,  1834. 
See  Stor.  Partn.  119. 


54  POTIIIER    ON    PARTNERSHIP. 


FIFTH   CHAPTER. 

Of  the  Right  each  of  the  Partners  has  to  the  Property  belonging  to  the 

Partnership. 

§  1.    General  Principles. 
FIRST  MAXIM. 

84.  Each  of  the  partners  can  use  the  things  belonging  to  the  partner- 
£,,.-,  -i  ship,  provided  he  does  so  according  to  the  uses  for  *which  they 

J  were  intended,  and  in  such  a  manner  as  not  to  hinder  his  part- 
ners from  using  them  in  their  turn  in  like  manner. 

85.  Nevertheless,  if  these  things  were  intended  to  be  let  out  to  hire,  in 
order  to  draw  an  income  therefrom,  and  it  was  the  interest  of  the  part- 
nership to  let  them  all  together  for  that  purpose  j  he  cannot  hinder  his 
partners  from  so  letting  them,  nor  can  he  make  use  of  his  share  except 
whilst  waiting  until  they  have  found  some  one  to  hire  them. 

For  example,  if  there  be  a  town  house  in  a  partnership,  one  partner 
would  not  be  allowed,  to  prevent  the  others  leasing  it  at  a  rent  to  a  stran- 
ger, by  claiming  a  right  to  occupy  a  part  of  that  house  proportioned  to 
his  share  in  the  partnership,  and  by  leaving  the  remainder  to  his  partners ; 
he  would  be  bound  to  consent  to  the  lease  or  to  make  a  better  bargain, 
or  to  obtain  a  higher  rent  in  a  short  time  which  would  be  allowed  to  him. 

But  if  it  were  a  house  not  intended  to  be  let  j  for  instance,  a  country 
chateau  or  even  a  town  house,  which  had  been,  by  a  clause  of  the  contract, 
put  into  the  partnership  in  order  to  serve  as  a  dwelling  for  the  partners ; 
one  partner  could  not  be  prevented  by  the  others  from  occupying  a  part 
proportioned  to  his  share  in  the  partnership. 

In  like  manner,  if,  amongst  the  effects  of  the  partnership,  there  were  a 
horse  intended  for  the  journeys  necessarily  made  in  the  business,  a  part- 
ner could  not  be  prevented,  at  the  time  when  there  were  no  journeys  to 
be  made,  from  himself  using  the  horse  for  an  airing,  he  leaving  to  his 
partners  the  right  of  using  him,  in  their  turn,  if  they  think  proper. 

SECOND  MAXIM. 

86.  Each  of  the  partners  has  the  right  of  obliging  the  others  to  join 
T  *ftt  1  w^k  *"m  *n  incuri%ing  tne  expenses  necessary  *for  the  preservation 

J  of  the  propeaty  belonging  to  the  partnership. 

si  In  default  of  special  stipulations,  each  partner  may  make  use  of  the  things 
belonging  to  the  partnership,  provided  he  employ  them  for  the  purposes  fixed  by 
usage,  and  that  he  do  not  make  use  of  them  contrary  to  the  interest  of  the  part- 
nership, or  in  such  a  manner  as  to  hinder  his  partners  from  making  use  of  them 
according  to  their  right.  Civ.  Cod.  of  France,  1859.  2.  Our  Law  is  much  the 
same  in  this  respect :  if,  for  instance,  one  partner  seeks  to  exclude  another  from 
having  access  to  or  using  the  books  of  the  partnership,  or  prevents  him  assisting 
in  the  management  and  control  of  the  partnership  concerns,  a  court  of  equity  will 
give  relief.  Coll.  Partn.  127  ;  Stor.  Partn.  280. 

86  In  default  of  special  stipulations,  each  partner  has  a  right  to  oblige  his  co- 


PARTNERSHIP    PROPERTY.  55 

For  example,  if  the  buildings  need  repair,  if  there  be  a  lot  of  wine  of 
which  the  casks  want  new  hoops,  each  of  the  partners  can  oblige  his 
copartners  to  join  with  him  in  making  these  repairs  and  rehoopings,  and 
for  this  purpose  to  consent  to  the  bargains  which  he  has  entered  into 
with  the  workmen  to  make  them,  unless  they  prefer,  in  a  short  space  of 
time,  such  as  the  judge  will  allow  them,  to  make  a  better  bargain  by 
performing  the  works  at  a  more  reasonable  cost.  The  partners  are  also 
obliged  to  concur  in  defraying  the  expenses  of  the  works,  according  to 
their  shares  in  the  partnership. 

THIRD  MAXIM. 

87.  A  partner  cannot  make  any  change  or  innovation  upon  the  estates 
belonging  to  the  partnership,   even  if  that  innovation  should  be  advan- 
tageous to  it :  In  reco  mmuni  neminem  dominorum  jure  facere  quicquam 
invito  altero  posse.     In  re  enim  pari  potiorem  causam  esse  prohibentis  ; 

I.  28,  ff.  Comm.  Divid.  (Dig.  lib.  x.  tit.  3,  1.  28). 

Therefore,  if  one  of  the  partners,  without  the  consent  of  his  copartners, 
has  sent  workmen  to  make  certain  buildings  upon  their  common  property, 
the  other  partners  would  have  good  grounds  for  preventing  him  :  quia 
ille,  qui  facere  conatur,  quodammodo  sibi  alienum  quoquejus  prceripit, 
si,  quasi  solus  dominus,  ad  suum  arbitrium  uti  jure  communi  velit ;  1. 

II,  ff.  Si  Serv.  Vendic.  (Dig.  lib.  viii.  tit.  5,  1.  11). 

88.  But  after  the  partner  has  finished  the  work  which  he  began  upon 
the  common  estate,  without  any  hindrance  from  his  associates,  they  can- 
not oblige  him  to  demolish  it,  but  only  to  idemnify  the  partnership  for 
the  injury  which  it  may  have  received  thereby;  unless  the  partnership 
has  a  great  interest  in  not  permitting  the  work  to  remain,  and  it  was 
made  during  *the  absence  and  without  the  knowledge  of  the  other  r+fi/i  -i 
partners.     This  is  what  Papinian  points  out :  Etsi  in  communi  L 
prohiberi  socius  a  socio,  tie  quid  facial  potest,  ut  tamen  factum  opus  tollat, 
cogi  non  potest,  si,  cum  prohibere  poterat,  hoc  prsetermisit ;  et  ideo  per 
communi   dividundo   actionem  damnum   sarciri  poterit.      /Sin    autem 
facienti  consensit,  nee  pro  damno  habet  actionem.      Quod  si  quid  absente 
socio,  ad  Isesionem  ejus  fecit,  tune  etiam  tollere  cogitur.     Diet.  Leg.  28, 
ff.  Comm.  Div.  (Dig.  lib.  x.  tit.  3,  1.  28.) 

FOURTH  MAXIM. 

89.  A  partner  cannot  alienate  or  bind  the  property  belonging  to  the 
partnership,  except  as  to  his  own  share.     Nemo  ex  sociis  plus  parte  sud 

partners  to  concur  with  him  in  the  expenditure  necessary  for  the  presevation  of 
the  property  of  the  partnership.  Civ.  Cod.  of  France,  1859.  3.  See  Coll.  Partn. 
127;  Stor.  Partn.  281. 

8?  In  default  of  special  stipulations,  one  of  the  partners  cannot  make  alterations 
in  immovables  belonging  to  the  partnership,  even  though  he  alleges  them  to  be 
advantageous  to  such  partnership,  if  the  other  partners  do  not  consent  thereto. 
Civ.  Cod.  of  France,  1859.  4.  See  Coll.  Partn.  127;  Stor.  Partn.  281. 

89  The  partner  who  is  not  manager  cannot  alienate  or  incumber  property,  even 
moveable,  which  belongs  to  the  partnership.  Civ.  Cod.  of  France,  1860.  Stor. 
Partn.  281. 


56  POTHIER    ON    PARTNERSHIP. 

potest  alienare,  etsi  totorum  bonorum  socii  sint.  1.  68,  ff.  pro  Soc.  (Dig. 
lib.  xvii.  tit.  2,  1.  68.) 

He  is  not  able  to  do  it  in  the  mere  capacity  of  partner  ;  but  can  he 
if  he  were  the  manager  of  the  partnership  property  ?  See  upon  that 
question  what  has  been  said  in  the  preceding  chapter,  §  2. 

90.  In  commercial  partnerships  the  partners  are  considered  to  have 
r  *«£  i  given  each  other  the  power  of  managing  the  ordinary  *business  • 
L  J  as  the  selling,  buying,  paying  for,  and  receiving  merchandise. 

so  In  default  of  special  stipulations  as  to  the  mode  of  management. 

The  partners  are  considered  to  have  reciprocally  given  each  other  the  power 
of  managing  one  for  the  other.  What  each  does  is  binding  even  upon  the  share 
of  his  partners,  without  his  having  obtained  their  consent ;  without  prejudice  to 
the  right  which  the  latter,  or  one  of  them,  has  to  oppose  the  execution  before  it  be 
concluded.  Civ.  Cod.  of  France,  1959. 

Our  own  law  in  this  respect  is  essentially  the  same  as  the  French.  All  stipula- 
tions between  the  partners  will  be  binding  upon  them  ;  but  as  partnership  deeds 
in  England  are  not,  as  in  France,  made  public  by  registration,  such  stipulations 
will  not  be  binding  upon  third  parties  unless  they  have  notice  of  them.  Smith  v. 
Jameson,  5  T.  R.  601.  South  Carolina  Bank  v.  Case,  8  Barn.  &  Cress.  427,  2  Man. 
&  Ry.  459. 

In  the  absence  of  any  stipulations  between  the  partners  limiting  their  respective 
powers  and  authorities,  each  partner  has  full  power  to  manage  the  ordinary  busi- 
ness of  the  firm,  whatever  it  may  be,  and  consequently  to  bind  his  partners,  whe- 
ther they  be  ostensible,  dormant,  actual,  or  nominal  (Swan  v.  Steele,  7  East,  210  ; 
Sandilands  v.  Marsh,  2  Barn.  &  Aid.  673  ;  Wintle  v.  Crowther,  1  Cromp.  &  Jerv. 
316,)  by  whatever  he  may  do  in  the  course  of  such  management,  as  entirely  as 
himself.  A  partner,  for  instance,  may  obtain  a  loan  (Rothwell  v.  Humphreys,  1 
Esp.  406;  Thicknesse  v.  Bromilow,  2  C.  &  J.  431,)  purchase  goods  (Hyatt  v.  Hare, 
Comb.  383  ;  Dyke  v.  Brewer,  2  Car.  &  Kir.  828),  sell  (Lambert's  case,  Godbolt, 
244  ;  Fox  v.  Hanbury,  Cowp.  445),  or  pledge  (Metcalfe  v.  Royal  Exchange  Associa- 
tion Company,  Barnard.  343),  even  in  the  case  of  a  particular  adventure  (Raba  v. 
Ryland,  Gow.  R.  132  ;  Tupper  v.  Haythorne,  Gow.  R.  135.  n ;  Exparte  Cellar,  1 
Rose,  297 ;  Read  v.  Hollinshead,  4  Barn.  &  Cres.  867,  7  Dowl.  &  Ryl.  444,  but  see 
Exparte  Copeland,  2  Mont.  &  A.  177,  3  D.  &  Chit.  199),  as  distinguished  from  a 
mere  joint-purchase  or  sub-purchase  (Barton  v.  Williams,  5  Barn.  &  Aid.  395), 
the  partnership  effects  ;  draw,  accept,  or  indorse  bills  of  exchange,  or  give  promis- 
sory notes  in  the  name  of  the  firm  (Pinkney  v.  Hall,  Salk.  126  ;  Smith  v.  Jar^es,  2 
Lord  Raym.  1484  ;  Smith  v.  Bailey,  4  Mod.  401  ;  Harrison  v.  Jackson,  7  T.  R.  210  ; 
Swan  v.  Steele,  7  East,  210;  Sutton  v.  Gregory,  2  Peake,  150 ;  Davison  v. Robert- 
son,  3  Dow,  219),  effect  insurances  (Hooper  v.  Lusby,  4  Camp.  66),  or  give  a  guar- 
antee (Hope  v.  Gust.,  1  East,  53  ;  Sandilands  v.  Marsh,  2  Barn.  &  Aid.  679 ;  Ex- 
parte Gardom,  15  Ves.  286  ;  2  Hov.  Supp.  406;  Exparte  Nolte,  2  Glyn  &  Jam. 
306)  ;  and  such  acts  and  dealings,  if  they  fall  within  the  ordinary  scope  ofthebusiness 
of  the  firm,  will  (Sadler  v.  Lee,  6  Beav.  324;  Blair  v.  Bromley,  2  Ph.  354,)  bind  all 
the  other  partners. 

The  powers  and  authorities  of  a  partner,  as  before  remarked,  must  be  exercised 
in  relation  to  the  ordinary  business  of  the  firm,  otherwise  they  will  not  be  binding 
upon  it.  For  instance,  if  one  partner  should  make  purchases  of  goods  not  connect- 
ed with  the  trade  (Stor.  Partn.  168),  or  should  give  letters  of  guarantee  or  credit, 
when  it  was  not  within  the  common  course  of  the  business  of  the  partnership,  the 
firm  would  not  be  bound  thereby.  Coll.  Partn.  279,  280;  Hope  v.  Gust,  1  East, 
53  ;  Duncan  v.  Lowndes,  3  Camp.  478. 

Although,  however,  the  dealings  of  one  of  the  partners  may  not  be  within  the 
ordinary  scope  of  the  partnership  business,  the  firm  will  be  bound,  where  proof  is 
given  of  the  previous  course  of  dealing  or  practice  of  the  partners  which  might  be 
sufficient  to  prove  a  mutual  authority,  or  of  the  usage  of  similar  partnerships,  or  if 
there  is  a  recognition  or  adoption  by  the  other  partners,  the  same  effect  will  follow. 
Crawford  v.  Stirling,  4  Esp.  207  ;  Payne  v.  Ives,  3  Dowl.  &  R.  664 ;  Sandilands  v. 
Marsh,  2  B.  &  Aid.  629  ;  Brettel  v.  Williams,  4  Excheq.  623. 

Upon  the  same  principle  the  firm  will  be  by  an  acknowledgment,  admission } 


PARTNERSHIP    PROPERTY.  57 

In  such  case  whatever  each  does  is  binding,  *even  upon  the  shares  ,-  ^.^  -, 
of  his  copartners,  without  his  having  obtained  their  consent.  But  L 
if,  at  the  time  when  one  of  the  partners  is  about  to  make  a  bargain  and 
before  it  is  concluded,  another  partner  offers  opposition  he  cannot  con- 
clude it,  according  to  that  rule  of  law  already  above  cited  :  in  re  par i 
potiorem  causam  esse  prohibentis  constat ;  1.  28,  ff.  De  Comni.  Divid. 
(Dig.  lib.  x.  tit.  3,  1.  28.) 

This  decision  is  not  contrary  to  what  we  have  before  said,  n.  71,  that 
such  one  of  the  partners,  who  by  the  contract  of  partnership  had  been 
named  manager,  could  do,  contrary  to  the  wishes  of  the  other  partners, 
all  acts  of  management  as  he  should  think  proper.  The  reason  of  the 
difference  is,  that  in  the  latter  case  the  other  partners  have  no  share  in 
the  management,  which,  they  have  entirely  given  up  to  him  whom  they 
have  chosen  by  the  contract  to  be  the  manager ;  in  the  former  case  the 
partner  who  opposes  has  an  equal  power  in  the  management  with  the 
partner  who  wished  to  make  the  bargain.  They  are  both  equally  mana- 
gers of  their  partnership  ;  it  is  for  this  reason  a  proper  case  for  the  appli- 
cation of  the  rule,  in  re  pari potior  causa  prohibentis. 

§  II.    Whether  one  partner  can  associate  a  third  party  in  the  partner- 
ship, or  only  as  to  his  own  share  ;  and  of  the  effect  of  his  doing  so. 

91.  Each  one  of  the  partners  having  only  a  right  to  dispose  of  the 

(Gray  v.  Palmers,  1  Esp.  135 ;  Hodenpyl  v.  Vingerhoed,  Chit.  Bills,  321,  n.  7  ed. ; 
Wood  v.  Braddick,  1  Taunt.  104;  Pritchard  v.  Draper,  1  Russ.  and  Myl.  199; 
Cheap  v.  Cramond,  4  Barn.  &  Aid.  663),  promise  (Lacy  v.  M'Neil,  4  Dowl.  &  Ryl. 

7),  or  undertaking  ( v.  Layfield,  1  Salk.  291),  or  even  by  the  fraudulent  acts 

(Willet  v.  Chambers,  Cowp.  R.  814;  Stone  v.  Marsh,  1  Ryan  &Mood.  364;  6  Barn. 
&  Cres.  561 ;  Hume  v.  Bolland,  1  Ryan  &  Mood.  371 ;  Keating  v.  Marsh,  2  C.  &  F. 
250),  or  statements  (Rapp  v.  Latham,  2  Barn.  &  Aid.  795,)  of  one  of  their  number, 
done  or  said  in  a  partnership  transaction,  or  with  respect  to  the  affairs  of  the  part- 
nership. Although,  as  we  have  before  seen,  he  can  release  a  debt  due  to  the  firm 
(ante,  and  see  Metcalfe  v.  Rycroft,  6  M.  &  S.  75;  Coll.  Partn.  171 ;  Stor.  Partn. 
169),  a  partner  cannot  bind  the  firm  by  a  submission  to  arbitration  (Stead  v.  Salt, 
3  Bing.  101  ;  Adams  v.  Bankart,  1  Cromp.  Mees.  &  Ros.  681  ;  Strangford  v.  Green, 
2  Mod.  228),  nor  by  deeds  or  instruments  under  seal,  even  though  he  may  have 
executed  them  during  the  course  of,  and  with  reference  to,  the  business  of  the  part- 
nership. Stor.  Partn.  173;  Coll.  Partn.  308. 

In  our  law,  differingin  this  iv^pect  from  the  French  in  the  absence  of  any  stipu- 
lation in  the  partnership  contract,  which  is,  of  course,  obligatory,  the  majority  of 
a  number  of  partners,  whatever  may  be  the  extent  of  their  shares,  will  have  power 
and  authority  to  do  all  acts  within  the  scope  of  the  business,  notwithstanding  the 
dissent  of  the  minority.  Const,  v.  Harris,  T.  &  R.  496.  517,  518.  524,  525.  "Where, 
however,  there  are  only  two  persons  in  a  firm,  the  dissent  of  one  of  them  to  a  trans- 
action will  not  only  be  binding  upon  his  partner,  but  also  upon  all  persons  who 
have  proper  notice  of  it.  Willis  v.  Dyson,  1  Stark.  R.  164. 

91  Every  partner  may  without  the  consent  of  his  copartners,  connect  himself 
with  a  third  person  in  reference  to  his  own  share  in  the  partnership  ;  he  cannot 
without  their  consent,  connect  such  person  with  the  partnership,  even  though  he 
has  the  management  thereof.  (Civ.  Code  of  France,  1861.) 

"I  take  it,"  says  Lord  Eldon,  "  to  have  been  long  since  clearly  established  that 
a  man  may  become  a  partner  with  A.  where  A.  and  B.  are  partners,  and  yet  not 
be  a  member  of  that  partnership  which  existed  between  A.  and  B.  In  the  case  of 
Sir  Charles  Raymond,  a  banker  in  the  city,  a  Mr.  Fletcher  agreed  with  Sir  Charles 
Raymond,  that  he  should  be  interested  so  far  as  to  receive  a  share  of  his  profits  of 
the  business,  and  which  share  he  had  a  right  to  draw  out  from  the  firm  of  Ray- 


58  POTHIER    ON    PARTNERSHIP. 

,-  ap-  -I  effects  of  the  partnership  as  to  his  own  share,  he  can  Consequently, 
-I  without  the  consent  of  his  partners,  take  a  third  party  as  a  part- 
ner in  his  own  share  in  the  partnership,  but  he  cannot,  without  the  con- 
sent of  his  partners,  bring  him  into  the  partnership. 

For  this  reason,  if  after  having  contracted  with  you  a  partnership, 
whether  universal  or  particular,  I  consider  it  proper  to  associate  with  my- 
self a  third  party,  that  third  party  will  be  a  partner  in  my  own  share, 
but  not  having  any  right  to  take  him  into  partnership  without  your  con- 
sent, except  as  to  my  own  share,  he  will  not  be  your  partner.  Hence 
this  rule  of  law :  socii  met  socius,  meus  socius  non  est;  1.  47,  §  fin.  ff. 
De  Reg.  Jur.  1.  20,  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  20.) 

92.  Hence  it  follows  that  if  we  are  several  partners  who  have  contracted 
a  partnership  together,  and  one  of  us  has  afterwards  taken  into  partner- 
ship with  himself  a  third  party ;  if  that  third  party  has  made  any  gain, 
although  it  arise  from  the  effects  of  our  partnership,  he  is  only  obliged 
to  account  for  and  share  it  with  the  one  who  has  taken  him  into  partner- 
ship, and  not  with  us,  who  are  not  his  partners :    Quidquid  fuerit  de  so- 
cietate  nostrd  consecutus,  cum  illo,  qui  eum  assumpsit,  communicabit ;  nos 
cum  eo  non  communicabimus ;  1.  21,  ff.  Pro.  Soc.     (Dig-  lib.  xvii.  tit. 
2, 1.  21.) 

We  have  not  on  this  account  any  action  against  such  third  party  who 
r  *rs  i  *s  no'  our  Partner>  but  only  against  our  partner,  *in  order  that  he 
-I  may  account  to  our  partnership  for  what  he  has  taken  therefrom 
to  put  into  the  hands  of  that  third  party. 

93.  If  that  third  party,  whom  one  of  our  partners  has  mixed  in  the 
affairs  of  our  partnership,  by  taking  him  as  a  partner  in  his  own  share, 
has  caused  by  his  default  some  damage  to  our  partnership,  we  have  no 
direct  action  for  the  reparation  of  that  damage  against  that  third  party, 
since  he  is  not  our  partner.     But  he,  who  has  taken  him  into  partnership, 
is  liable  to  us,  as  if  he  himself  had  done  the  damage,  because  having 
mixed  him  in  the  affairs  of  our  partnership,  by  taking  him  as  a  partner 
in  his  own  share  he  is  bound  by  \\isactsfactumejusprestabitur  societati: 
Diet.  Leg.  21;  (Dig.  Lib.  xvii.  tit.  2, 1.  21);  without  prejudice  to  our 
partner,  who  has  taken  such  third  party  into  partnership,  bringing  an 
action  against  him,  in  order  to  make  him  account  for  the  fault  which  he 
has  committed.     He  may  even  commence  this  action  against  him  before 
putting  in  his  defence  to  ours  :    Certum  est,  nihil  vetare,  prlus  inter  eum, 
qui  admiserit,  et  eum  qui  admissus  fuerit  societatis  judicio  agi,  qudm 
agi  incipiat  inter  cseteros  et  eum  qui  admiserit ;  1.  22,  ff.  Diet.   Tit. 
(Dig.  lib.  xvii.  tit.  2,  1.  22). 

According  to  our  French  practice,  with  respect  to  the  action  which  we 
bring  against  a  partner  for  the  damage  caused  by  the  third  party  whom 

mond  &  Co.  But  it  was  held  that  he  was  no  partner  in  that  partnership,  had  no 
demand  against  it,  had  no  account  in  it,  and  that  he  must  be  satisfied  with  a  share 
of  the  profits  arising  and  given  to  Sir  Charles  Raymond."  Per  Lord  Eldon  in  Ex- 
parte  Barrow,  2  Rose,  254. 

So  in  case  of  a  bankruptcy  of  the  partner  who  takes  a  stranger  into  partnership 
in  his  own  share,  if  the  latter  prove  against  the  separate  estate.  Exparte  Dodgson, 
Mont.  &  M'A.  445,  and  see  Coll.  128,  2  Bell.  Comm.  536  ;  Brown  v.  De  Tastet,  Jac. 
284. 


PARTNERSHIPPROPERTY.  59 

he  has  taken  into  partnership,  he  can  demand  that  such  third  party 
should  be  made  a  party  to  the  cause.  Moreover,  the  partner  is  liable  to 
the  partnership  for  the  damage  caused  to  it  by  the  third  party  whom  he 
has  taken  into  partnership  in  his  own  share,  even  if  that  third  party 
should  be  insolvent,  and  he  could  consequently  have  no  recourse  against 
him,  because  it  is  his  fault  in  having  mixed  him  in  the  affairs  of  the 
partnership,  by  taking  him  into  partnership  with  himself.  Difficile  est 
negare  culpd  ipsius  admissum  ;  1.  23,  ff.  Diet.  Tit.  (Dig-  lib.  xvii.  tit. 
2,  1.  23.) 

But  with  respect  to  the  partner,  from  whom  an  account  is  demanded 
of  the  damage  caused  by  a  third  person  whom  he  has  taken  into  partner- 
ship with  himself,  cannot  he  at  any  rate  put  forward  a  claim  that  he 
ought  to  set  off  the  amount  *of  profits  that  such  third  party  had,  ^  ^aa  -\ 
in  other  respects  by  his  industry,  procured  for  the  partnership  ?  L 

Pomponius  holds  the  affirmative,  for  which  he  is  blamed  by  Ulpian, 
who  says  that  there  should  be  no  such  set  off,  and  that  it  is  not  allowable 
to  say  to  his  partner  who  has  demanded  from  him  an  account  of  the 
damage  caused  by  the  third  party;  abstine  commodo,  si  damnum  petis. 
He  adds  that  the  Emperor  Marcus  Aurelius  had  thus  adjudicated  in  a 
similar  matter;  Diet.  Leg.  23,  §  1.  (Dig.  lib.  xvii.  tit.  2,  1.  23). 

The  reason  is,  that  the  deed  of  that  third  party  whom  one  of  the  part- 
ners has  taken  into  partnership  with  himself  and  mixed  in  the  affairs  of 
the  partnership,  ought  to  be  regarded  as  his  own  deed,  whether  for  profit 
or  loss,  for  it  is  himself  who  has  appointed  him.  But  if  that  partner, 
by  his  own  deed,  had  caused  a  loss  to  the  partnership,  he  can  not  set  off 
against  the  reparation  which  he  owes,  the  profit  which  he  has  otherwise 
gained  for  the  partnership  by  his  word  and  his  industry,  as  we  shall  see 
in  the  following  chapter. 

94.  It  remains  to  be  observed  that  when  any  one  who  is  in  a  partner- 
ship with  several  others  has  taken  into  partnership  a  third  party  in  his 
own  share  in  the  partnership,  in  the  account  that  he  and  such  third  party 
will  have  to  render  one  to  the  other,  in  the  same  way  as  such  third  party 
will  be  bound  to  account  for  the  loss  which  he  has  caused  by  his  fault  to 
the  property  of  the  partnership  (because  that  partner  is  liable  for  it  with 
respect  to  his  partners),  so  that  partner  will  be  bound  to  account  to  such 
third  party,  not  only  for  the  loss  caused  by  his  own  fault,  but  also  for  that 
caused  by  his  partners,  to  the  property  of  the  partnership,  as  to  the  share 
that  such  third  party  suffers  from  it ;  because  the  action  which  that  part- 
ner has,  on  account  of  the  loss,  against  his  partners  who  have  caused  it, 
is  an  action  dependent  on  the  right  which  he  has  to  his  share  in  the  part- 
nership, as  to  which  has  taken  that  third  party  into  partnership,  and 
which  falls  consequently  into  the  particular  partnership  which  he  has 
contracted  with  that  third  party.     This  is  what  G-aius  points  out  in  law 
22,  ff.  pro.  Soc  :  Ex  contrario  factum  quoque  *sociorum  debet  si  r  ,~A-I 
prsestare,  sicuti  suum ;  quia   ipse  adversus  eoshabet  actionem.  "- 
(Dig.  lib.  xvii.  tit.  2,  1.  22.) 

95.  What  we  have  so  far  said  that  one  partner  cannot  take  a  third 
party  into  the  partnership  without  the  consent  of  the  others,  holds  good 
even  where  that  partner  should  have  the  management  of  the  property  of 


60  POTHIER  ON  PARTNER  SHI  P. 

the  partnership ;  because  it  is  a  thing  which  appears  to  me  to  pass  the 
bounds  of  a  simple  management  of  the  partnership  property  to  give  to  his 
partners  an  associate  whom  they  have  not  themselves  chosen.  If  the 
survivor  of  two  joined  together  by  marriage  has  that  power  with  regard 
to  the  partnership  which  has  been  contracted  by  default  of  an  jnventory, 
(as  we  shall  see  in  my  "  Treatise  on  Marriage,")  it  is  because  the  man- 
agement is  not  a  simple  management,  but  a  management  cum  liberd  and 
without  bounds. 


SIXTH    CHAPTER. 

Of  the  Debts  of  Partnerships  ;  and  the  liability  of  each  of  the  Partners 

for  them. 

WITH  respect  to  this,  it  is  necessary  to  distinguish  between  partner- 
ships in  trade  and  those  which  are  not  partnerships  in  trade  ;  and  amongst 
partnerships  in  trade,  between  those  which  are  called  partnerships  en  nom 
collectif  and  those  which  are  called  partnerships  en  commandite  and  part- 
nerships termed  anonymes. 

§  1.    Of  the  Debts  of  Partnerships  EN  NOM  COLLECTIF. 

96.  In  partnerships  of  commerce  en  nom  collectif  each  of  the  partners 
r  ^,  -,  is  bound  (solidairement}  in  solido,  that  is  to  say,  *jointly  and 
J  severally  by  the  debts  of  the  partnership.  (Ordonnance  of  1673, 
tit.  iv.  art.  7.) 

This  provision  of  the  Ordonnance  is  an  exception  to  the  general  prin- 
ciple of  Law,  according  to  which,  when  several  persons  contract  an  obli- 
gation together,  each  is  considered  to  have  contracted  it  only  with  respect 
to  his  own  share,  unless  it  has  been  expressly  declared  that  the  obliga- 
tion is  joint  and  several;  1.  ii.  §  2,  de  Duobus  Reis.  Dig.  lib.  xlv.  tit. 
2,  1.  11,  §  2.) 

That  exception  is  founded  upon  the  favour  shown  to  commerce,  in 
order  that  traders  in  partnership  might  obtain  more  credit.  It  is  found- 
ed also  upon  the  principles  of  our  French  law  (differing  in  this  respect 
from  those  of  the  Roman  law  in  the  law  4,  ff.  De  Exerc.  Act),  that  part- 
ners in  trade  are  considered  to  be  agents  and  managers  for  each  other  of 
the  business  of  the  partnership.  But  an  agent  or  manager  who  enters 
into  a  contract  binds  all  his  employers,  jointly  and  severally;  1.  1,  §  fin. 
et  1.  2,  ff.  De  Exerc.  Act.  1.  13,  §  2,  ff.  De  Inst.  Act. 

With  regard  to  the  heirs  of  a  partner,  they  are  collectively  liable  for 
the  whole  of  the  debts  of  the  partnership  as  representing  the  deceased 

96  The  partners  en  nom  collectif,  mentioned  in  the  act  of  partnership,  are  jointly 
and  severally  liable  for  all  the  engagements  of  the  partnership,  although  only  one 
of  the  partners  has  signed,  provided  it  be  (sous  la  raison  sociale)  in  the  name  of  the 
firm.  Comm.  Cod.  of  France,  22.  See  Pothier  on  Obligations,  n.  83.  Our  law 
is  essentially  the  same  as  the  French.  See  ante,  90,  note,  and  Troplong,  Contract 
de  Societe,  297. 


LIABILITY  OF  PARTNERS.  61 

who  was  liable  for  the  whole  of  them  ;  but  each  of  them  is  only  liable  to 
the  extent  of  the  share  that  he  is  entitled  to  as  heir  of  the  deceased. 

97.  In  order  that  a  debt  may  be  considered  a  partnership  debt,  so  as 
to  bind  each  of  the  partners  jointly  and  severally,  it  is  necessary  that  two 
things  should  concur;  first,  that  it  should  have  been  contracted  by  some 
one  who  had  the  power  of  binding  all  the  partners;  secondly,  that  it 
should  have  been  contracted  in  the  name  of  the  partnership. 

FIRST   CONDITION. 

98.  In  order  that  a  debt  may  be  a  partnership  debt,  binding  upon  all 
the  partners,  it  is  necessary  that  he  who  has  contracted  it  should  have 
the  power  of  binding  all  the  partners. 

For  one  of  the  partners  to  have  this  power,  it  is  necessary  that  his 
copartners  should  have  given  to  him,  either  expressly  or  by  implication, 
the  power  of  managing  the  affairs  of  the  *partnership,  or  that  the  r  ^^  _ 
person  who  has  contracted  with  him,  had  grounds  for  believing  L  ' 
that  he  had  that  power.  If  this  be  not  the  case,  the  debt  contracted  by 
him,  although  in  the  name  and  for  the  affairs  of  the  partnership,  does 
not  bind  the  other  partners,  except  in  so  far  as  the  partnership  has  pro- 
fited by  it. 

In  order  that  the  public  might  know  whether  a  partner  has  that  right, 
the  Ordonnance  has  wisely  prescribed  the  registration  (au  greffe)  at  the 
Registry,  and  the  inscription  in  a  public  place  of  an  extract  of  contracts 
of  partnership,  which  extract  should  contain  those  clauses  of  the  contract 
of  partnership  which  concern  the  public,  as  we  have  seen,  supra,  ch.  4. 

If  that  provision  were  observed,  it  would  be  easy  for  those  who  con- 
tract with  a  person  who  professes  to  be  in  partnership  with  others  to  know 
by  consulting  this  extract,  whether  he  had  or  had  not  the  powe^r  of  man- 
aging the  partnership,  and  of  binding  his  copartners;  and  those  who 
should  have  contracted  with  a  person  who  had  not  this  power  would  be  to 
blame  for  not  having  informed  themselves  on  the  subject. 

That  provision  of  the  Ordonnance  having  fallen  into  disuse,  as  we  have 
before  seen,  how  can  I  know  that  a  partner  with  whom  I  contract  has 
the  power  of  managing  the  affairs  of  the  partnership  ?  And  when  am 
I  to  be  considered  to  have  grounds  for  believing  that  he  had  that  power  ? 

When  the  partner  with  whom  I  have  contracted  was  already  in  the 
habit  of  entering  into  contracts  in  the  name  of  the  partnership  in  the 
presence  and  with  the  knowledge  of  his  copartners,  it  is  clear  in  such 
case  that  this  would  give  me  a  just  ground  for  believing  that  he  had 
power  to  manage  the  affairs  of  the  partnership.  Therefore  the  debt 
which  he  contracts  with  me  binds  his  partners,  even  if  he  had  been  for- 
mally excluded  from  the  management  by  a  clause  in  the  partnership  con- 
tract ;  for  if  they  are  not  bound,  in  such  case,  by  virtue  of  a  power  given 
to  him  to  enter  into  contracts  for  the  partnership  they  are  bound  ex  dolosa 
sud  dissimulatione  ;  or,  even  without  accusing  them  of  fraud,  it  may  be 
said,  that  by  allowing  him  to  contract  in  the  name  of  the  partnership  in 
their  presence  and  with  their  knowledge,  they  ought  to  be  presumed  to 


62  POTHIER    ON    PARTNERSHIP. 

.-  ^,-q  -.  have  given  to  him  tacitly  the  power  *which  they  had  at  first  re- 
J  fused  to  him  by  the  contract  of  partnership. 

There  is  more  difficulty  in  the  case  where  a  partner,  who  has  contracted 
in  the  name  of  the  partnership,  was  not  already  in  the  habit  of  doing  so, 
and  was  effectually  excluded  by  the  contract  of  partnership  from  the 
power  of  managing  the  affairs  of  the  partnership. 

On  one  side  it  may  be  argued,  against  the  person  who  has  contracted 
with  him,  that  he  ought  to  have  informed  himself  whether  that  partner 
with  whom  he  contracted  had  power  of  managing  the  affairs  of  the  part- 
nership. Qui  cum  aliquo  contra/lit  vel  est,  vel  debet  esse  non  ijnarus 
conditionis  ejus  cum  quo  contrahit ;  1.  19,  ff.  De  Reg.  Jur.  (Dig.  lib.  1. 
tit.  17,  1.  19.)  On  the  other  side  it  may  be  argued,  that  the  Ordonnance 
of  1673,  in  saying  that  "all  partners  shall  be  bound  by  the  debts  of  the 
partnership,  even  if  there  has  been  a  signature  of  only  one,  provided  the 
signature  be  for  the  company,"  since  it  does  not  draw  any  distinction  as 
to  whether  such  one  has  or  has  not  the  power  of  management,  appears  to 
suppose  that  each  of  the  partners  ought  to  be  presumed  to  have  that 
power,  whilst  the  contrary  is  not  known.  The  reason  is,  that  it  being 
the  practice  in  trading  partnerships  for  the  partners  reciprocally  to  give 
each  other  power  to  contract  and  to  do  the  business  of  the  partnership 
for  each  other,  he  who  has  contracted  with  one  of  the  partners  has  just 
grounds  for  believing  that  such  partner  had  that  power,  when  the  clause 
of  the  partnership  contract,  which  took  it  away,  was  not  known  either  to 
him  or  to  the  public. 

^'  That  being  an  extraordinary  clause,  and  one  which  concerns  the  public, 
the  partners  ought  to  make  it  public,  according  to  the  requirement  of  the 
Ordonuance  ;  and  in  default  of  having  done  so,  it  ought  to  be  of  no  effect 
with  regard  to  third  parties,  and  the  firm  ought  to  be  bound  by  contracts 
entered  into  by  their  partner,  although  he  was  deprived  of  the  manage- 
ment by  a  clause  of  the  partnership,  and  in  the  same  manner  as  if  he  had 
had  the  power  of  management,  the  clause  which  took  away  from  him  this 
power  being  of  no  effect  with  regard  to  third  parties,  for  the  reasons  above 
given. 

r  *74  1  *Not  only  has  one  of  the  partners  the  power  in  contracting  to 
•*  bind  all  his  copartners  jointly  and  severally,  but  a  factor  or  (in- 
stiteur)  agent  who  has  been  entrusted  by  all  the  partners  with  the  man- 
agement of  the  affairs  of  the  partnership,  although  he  is  not  a  partner, 
has  in  like  manner  the  power  of  binding  all  his  employers,  jointly  and 
severally,  according  to  the  principles  which  I  have  established  in  my 
"  Treatise  on  Obligations,"  Part.  II.  chap.  vi.  sect.  8,  art.  2. 

SECOND  CONDITION. 

100.  Whatever  power  one  of  the  partners  may  have  to  bind  the  others 
by  a  debt  which  he  has  contracted,  it  is  necessary  that  it  should  be  con- 
tracted in  the  name  of  the  partnership. 

The  Ordonnance  of  1673,  tit.  4,  art.  7,  declares  when  it  ought  to  be 
considered  as  contracted  in  the  name  of  the  partnership.  It  is,  says  the 


LIABILITY    OF    PARTNER  8.  63 

Ordonnance,  when  the  partner  adds  to  his  signature,  that  he  signs  "  for 
the  company,  and  not  otherwise." 

101.  When  the  debt  has  been  contracted  in  the  name  of  the  partner- 
ship, it  binds  all  the  partners,  even  when  the  partnership  has  derived  no 
benefit  therefrom.  For  example,  if  one  of  the  partners  has  borrowed  a 
sum  in  the  name  of  the  partnership,  although  he  has  employed  it  in  his 
own  private  affairs,  and  not  in  those  of  the  firm,  the  creditor  who  has  his 
note  signed  "  and  company,"  can  demand  its  payment  from  all  the  part- 
ners; for  the  creditor  could  not  foresee  how  he  would  employ  the  sum 
lent  to  him  for  the  partnership  :  the  other  partners  must  blame  themselves 
for  having  taken  a  faithless  partner,  in  the  same  manner  as,  in  a  like 
case,  an  employer  ought  to  blame  himself  for  having  committed  the  man- 
agement of  his  affairs  to  a  faithless  person ;  1.  1,  §  9,  ff.  De  Exercit.  Act. 
(Dig.  lib.  xiv.  tit.  1,  1.  1,'  §  9.) 

But  if,  by  the  nature  of  the  contract  which  I  have  entered  into  with 
another  person  who  was  in  partnership  in  trade  with  others,  it  appears 
that  the  object  of  the  contract  did  not  concern  the  affairs  of  the  partner- 
ship ;  if,  for  instance,  the  contract  was  a  bargain  for  works  to  be  done 
to  a  house  which  that  person  possessed  unconnected  with  the  partner- 
ship; ^although  he  may  have  signed  the  bargain  "  and  company," 
the  debt  will  not,  on  that  account,  be  considered  a  debt  of  the  < 
partnership,  since  by  its  object,  it  appears  that  it  did  not  concern  the 
affairs  of  the  partnership. 

On  the  contrary,  when  one  of  the  partners  does  not  appear  to  have 
contracted  in  the  name  of  the  partnership,  but  in  his  own  name  alone, 
although  the  partnership  has  derived  a  profit  from  the  contract — for 
instance,  if,  having  borrowed  a  sum  of  money  in  his  own  name  only,  for 
his  own  affairs,  he  employs  it  in  the  affairs  of  the  partnership, — the  per- 
son who  contracted  with  that  partner  will  not,  on  account  thereof,  have 
an  action  against  the  other  partners;  because,  according  to  the  princi- 
ples of  law,  a  creditor  only  has  an  action  against  him  with  whom  he  has 
contracted,  and  not  against  those  who  have  profited  by  the  contract;  1. 
15,  Cod.  SI  cerium  petatur  et  passim  :  the  creditor,  with  regard  to  the 
other  partners,  has  only  the  means  of  seizing  in  their  hands  what  they 
ewe  to  his  debtor,  on  account  of  that  transaction. 

§  II.    Of  the  Debts  of  Partnerships  en  commandite,  and  of  anonymous 

Partnerships. 

102.  Since  in  partnerships  en  commandite,  the  principal  partner,  and 

i02  In  a  partnership  en  commandite,  when  there  are  several  partners  jointly  and 
severally  responsible  by  name,  whether  all  manage  together,  or  one  or  more  man- 
age for  all,  the  partnership  is  at  the  same  time  a  partnership  en  nom  collectif  with 
respect  to  them,  and  a  partnership  en  commandite  with  respect  to  those  who  are 
merely  holders  of  funds  or  shareholders.  Comm.  Cod.  of  France,  24. 

The  name  of  a  partner  en  commandite  cannot  form  part  of  the  style  of  the  firm. 
Ib.  25. 

The  partner  en  commandite  is  only  liable  for  losses  to  the  amount  of  the  funds 
which  he  has  contributed,  or  ought  to  contribute,  to  the  partnership.  Ib.  26. 

The  partner  en  commandite  can  do  no  act  of  management,  nor  be  employed  in  the 
business  of  the  partnership,  even  under  a  power  of  attorney.  Ib.  27. 

SEPTEMBER,  1854. — 30 


04  POTHIERONPARTNERSIIIP. 

r-^ft  -i  in  anonymous  partnerships  the  known  partner,  alone  *makes,  and 
-I  each  in  his  own  name  the  contracts  of  the  partnership,  it  follows 

In  case  of  contravention  of  the  prohibition  mentioned  in  the  preceding  article, 
the  partner  en  commandite  is  responsible,  jointly  and  severally,  with  the  partners 
en  nom  collectif,  for  all  the  debts  and  liabilities  of  the  partnership.  Ib.  28. 

An  anonymous  partnership  is  indicated  by  the  designation  of  the  object  of  its 
enterprise.  Ib.  30. 

It  is  managed  by  temporary  directors,  who  are  revocable,  and  are  either  part- 
ners or  not  partners,  with  or  without  salaries.  Ib.  31. 

The  directors  only  are  liable  for  the  execution  of  the  powers  confided  to  them. 
They  do  not  contract  by  reason  of  their  management  any  personal  or  joint  and 
several  obligation  with  relation  to  the  engagements  of  the  partnership.  Ib.  32. 

The  partners  are  only  liable  for  losses  to  the  amount  of  their  interest  in  the 
partnership.  Ib.  33. 

With  regard  to  partnerships  en  commandite  it  will  be  observed  that  the  partners 
whose  names  appear  to  the  world  are,  like  partners  en  nom  collectif,  jointly  and 
severally  liable  for  all  the  debts,  while  the  partners  en  commandite  whose  names 
do  not  appear,  if  they  comply  with  the  provisions  of  the  code,  as  to  registration 
and  non-interference  with  the  management  of  the  affairs  of  the  partnership,  will 
only  be  liable  to  the  extent  of  their  capital.  This  species  of  partnership  does  not 
exist  in  England,  because  it  is  here  a  maxim  of  the  law  that  all  persons  entitled 
to  a  share  in  the  profits  of  a  partnership,  even  dormant  or  concealed  partners,  are, 
as  regards  third  parties,  notwithstanding  any  stipulations  among  themselves, 
liable  in  solido  for  all  the  debts  of  the  partnership.  (See  Blundell  v.  Winsor,  8 
Sim.  601 ;  Walburn  v.  Ingilby,  1  My.  &  K.  61,  76;  Stor.  Partn.  254.)  So  likewise 
if  a  person  advance  money  to  a  firm  at  a  rate  of  interest  varying  with  the  profits 
of  the  concern,  he  will  be  liable  as  a  partner.  Partnerships  of  this  kind  exist  in 
all  parts  of  the  Continent  of  Europe,  and  have  been  adopted  in  many  of  the  States 
of  North  America;  and  it  appears  to  be  the  opinion  of  mercantile  men,  and  of 
lawyers  in  those  countries,  that  they  have  greatly  contributed  to  commercial  pros- 
perity, and  towards  bringing  capital,  which  would  otherwise  have  remained  dor- 
mant, into  active  and  useful  circulation. 

The  introduction  of  partnerships  en  commandite  into  this  country  has  been 
recommended  by  many  persons  whose  opinions  are  entitled  to  great  consideration; 
and  as  it  is  believed  that  here  as  well  as  elsewhere  they  would  promote  the  pros- 
perity of  small  capitalists,  and  especially  of  the  working  classes,  it  is  to  be  hoped 
that  the  commission  now  sitting  for  the  purpose  of  taking  into  consideration  the 
mercantile  laws  of  England,  Scotland,  and  Ireland,  with  a  view  to  their  assimila- 
tion, will  not  pass  over  without  notice  a  subject  of  such  deep  importance.  The 
principle  of  limited  liability,  as  in  partnerships  en  commandite.  has  been  long  since 
recognised  and  adopted  in  this  country,  where  Acts  of  Parliament  or  Charters 
have  constituted  companies  for  public  undertakings,  such  as  for  railways,  gas,  or 
waterworks,  docks,  &c.  The  Irish  Anonymous  Partnership  Act  (21  &  22  Geo.  3, 
c.  46),  passed  so  far  back  as  the  year  1781-2,  adopts  the  principle  of  limited 
liability,  but  as  it  interferes  too  much  with  what  ought  to  be  left  to  the  discretion 
of  the  parties,  its  success  has  not  been  very  encouraging. 

One  of  the  objections  which  might  formerly  have  been  raised  to  partnerships  en 
commandite  was,  that  they  were  merely  the  means  of  obtaining  a  rate  of  interest 
varying  with  the  profits  of  the  concern,  and  were  therefore  within  the  mischief  of 
usury ;  but  as  the  laws  against  usury  (except  where  land  forms  part  of  the  secu- 
rity) have  been  repealed,  this  objection  can  now  have  no  weight. 

Another  ejection  is,  that  these  kinds  of  partnership  would  lead  to  undue  specu- 
lation. To  this  we  may  answer  that  in  private  undertakings  the  owners  of  capital 
are  in  general  the  best  judges  as  to  whether  they  would  or  would  not  be  produc- 
tive, and  that  the  Legislature  which  confers  the  privilege  of  limited  liability  upon 
companies  formed  for  carrying  out  undertakings  of  apublic  character,  might  de- 
pend upon  individuals  exercising  ordinary  prudence  in  their  own  affairs. 

Another  objection  is,  that  it  is  not  right  that  the  partner  with  limited  liability 
should  participate  in  the  profits  and  throw  the  losses  upon  innocent  parties.  There 
is,  however,  no  weight  in  this  objection,  for  if  a  partner  en  commandite,  contracts 
with  third  parties  (as  he  does  in  all  cases,)  that  he  will  be  liable  only  to  the  extent 
of  his  capital  in  the  concern,  those  parties  who,  after  full  notice,  deal  with  the 


LIABILITY    OF     PARTNERS.  65 

that  he  renders  himself  alone  liable,  and  *that  the  partners  en  p  ^^  -, 
commandite,  as  well  as  the  unknown  partners,  are  not,  according  L 
to  the  principles  established,  supra,  n.  101,  liable  for  the  debts  of  the 
partnership  to  the  creditors  with  whom  the  principal  or  known  partner 
has  contracted.  They  are  only  liable  for  them  .to  their  principal  or 
known  partner  who  has  contracted  them ;  they  ought  to  acquit  him  from 
them  according  to  the  share  which  each  has  in  the  partnership ;  that  is 
to  say,  the  anonymous  partner  indefinitely,  and  the  partner  en  comman- 
dite, only  to  the  amount  of  the  capital  which  he  has  put  into  the  part- 
nership. 

§  III.    Of  the  Debts  of  Partnerships  not  Partnerships  in  Trade. 

103.  The  Ordonnance  of  1673  having  been  promulgated  *for  r  ^^  -. 
the  purposes  of  commerce,  which  appears  to  be  the  object  of  all  *- 

its  provisions,  it  can  no  longer  be  doubted  that  its  title  "  Of  Partner- 
ships" is  applicable  only  to  partnerships  in  trade :  for  this  reason,  when 
it  is  said  "  that  partners  are  bound,  jointly  and  severally,  by  the  debts 
of  the  partnership,"  it  holds  good  with  respect  to  these  partnerships  only. 
That  joint  and  several  liability  being  an  exception  from  the  common 
law,  founded  upon  a  reason  peculiar  to  commercial  partnerships  (supra, 
n.  96,)  ought  not  to  be  extended  to  others;  and  when  two  partners  (who 
are  not  partners  in  trade)  enter  into  contracts,  although  for  the  affairs  of 
their  partnership  they  do  not  bind  themselves  jointly  and  severally 
towards  the  creditor,  but  each  for  his  share  only,  unless  a  joint  and 
several  liability  be  expressed. 

104.  Is  that  for  an  equal  share,  or  for  the  share  each  has  in  the  part- 
partnership,  have  no  natural  or  equitable  right  to  more  than  what  they  have  con- 
tracted for. 

The  creditors  are  better  circumstanced  when  part  of  the  capital  to  carry  on  a 
business  is  subscribed  by  partners  en  commandite,  than  when  it  is  borrowed  by  a 
firm,  is  clear.  Thus,  if  a  firm  carries  on  business  with  a  capital  of  20,OOOZ.,  10,OOOZ. 
of  which  is  borrowed,  in  the  event  of  ill  success  the  lender,  after  obtaining  per- 
haps a  far  higher  rate  of  interest  than  the  average  rate  of  profits,  either  obtains  a 
preference  over  the  other  creditors,  or  proves  as  a  creditor  for  what  remains 
unpaid  of  the  10,OOOZ,  whereas  a  partner  en  commandite  would  only  be  entitled  to 
a  share  of  the  profits,  if  there  were  any,  and  would  be  liable  to  the  extent  of  his 
10,OOOJ.  embarked  in  the  concern  to  its  creditors. 

The  principal  opponents  of  partnerships  with  limited  liability  will  most  likely 
be  found  amongst  the  large  capitalists,  who  perhaps  naturally  fear  that  a  combi- 
nation of  small  capitalists,  by  bringing  dormant  capital  into  active  competition 
with  their  own,  would  thereby  diminish  their  profits. 

103  In  partnerships  other  than  those  for  commerce  the  partners  are  not  bound 
jointly  and  severally  by  partnership  debts,  and  one  of  the  partners  cannot  bind  the 
others,  unless  they  have  given  him  that  power.  Civ.  Cod.  of  France,  1862. 

10*  Partners  are  bound  towards  the  creditor  with  whom  they  have  contracted, 
each  in  an  equal  sum  and  share,  although  the  share  of  one  of  them  in  the  partner- 
ship should  be  less,  if  the  act  have  not  specially  confined  the  obligation  of  the 
latter  to  the  footing  of  the  latter  share.  Civ.  Cod.  of  France,  1863.  A  stipulation, 
that  the  obligation  is  contracted  on  account  of  the  partnership,  binds  only  the 
partner  contracting,  and  not  the  others,  unless  the  latter  have  given  him  authority, 
or  the  thing  have  turned  to  the  profit  of  the  partnership.  Ib.  18.  64.  See  2  Stor. 
Partn.  257.  According  to  our  law,  it  seems  that  partners,  although  not  in  trade, 
would  be  liable  (in  solido)  for  the  debts  of  the  partnership,  provided  they  were 


66  POTHIER    ON     PARTNERSHIP. 

nership  ?  The  answer  must  be,  in  the  absence  of  any  expressed  inten- 
tion, that  it  is  for  an  equal  share;  the  creditor  with  whom  they  have 
contracted  not  being  bound  to  know  what  share  they  each  have  in  their 
r  *7Q  T  partnership.  For  *example,  suppose  two  neighbours  at  Paris 
-I  agree  to  buy  at  their  common  cost  a  carriage  and  horses,  and  to 
keep  the  equipage  at  their  common  cost,  for  their  use  in  Paris :  they 
contract  together  a  partnership  in  that  equipage,  and  it  is  a  partnership 
unius  rei,  not  for  the  purposes  of  trade.  If,  during  that  partnership, 
they  make  a  bargain  with  a  person  who  sells  them  a  certain  quantity  of 
hay  for  a  certain  price,  which  they  each  bind  themselves  to  pay  within 
a  certain  period,  although  they  are  partners,  and  the  debt  which  they 
have  contracted  for  the  price  of  the  hay  which  is  to  serve  for  the  keep 
of  the  horses  of  their  common  equipage  is  a  debt  contracted  for  the  affairs 
of  the  partnership;  nevertheless  their  partnership,  not  being  a  commercial 
partnership,  they  will  only  owe  each  a  moiety  of  the  price  of  the  hay  to 
the  seller,  unless  by  the  bargain  a  joint  and  several  liability  was  expressed. 

But  even  if,  by  their  contract  of  partnership,  they  should  have  agreed 
that  one  of  the  two,  who  used  the  equipage  less  frequently  than  the  other, 
should  only  have  a  third  share  in  it,  each  of  them  would,  nevertheless, 
be  liable  for  the  moiety  of  the  price  of  the  hay  towards  the  seller,  who 
has  sold  it  to  both,  without  prejudice  to  the  partner  who  has  only  a  third 
share  making  the  other  account  to  him  for  what  he  has  paid  more  than 
his  third. 

105.  When  the  debt  has  been  contracted  by  one  of  the  partners  only, 
he  alone  is  liable  to  the  creditor,  without  prejudice  to  his  making  his 
partner  account  to  him  for  it. 

This  will  be  the  case,  even  when  by  the  contract  he  should  have  ex- 
pressly stated  that  he  contracted  as  well  in  his  own  as  in  the  name  of  his 
partner  :  the  provision  of  the  Ordonnnace  of  1673,  which  says,  "  that  a 
partner,  in  that  case,  binds  his  copartners,"  is  applicable  only  to  commer- 
cial partnerships.  If,  nevertheless,  he  was  justified,  or  his  partner  had 
effectually  given  him  power,  or  the  debt  had  turned  to  the  profit  of  the 
partnership,  the  other  partner  would  be  liable  to  the  creditor,  according 
to  his  share  in  the  partnership. 

When  one  of  the  partners  has  contracted  in  his  own  name 
J  *alone,  it  is  clear,  in  such  case,  that  he  alone  is  liable  to  the 
creditor  with  whom  he  has  contracted,  in  the  same  way  as  we  have  seen 
with  regard  to  commercial  partnerships  (supra,  n.  101,)  without  preju- 
dice to  his  obtaining  an  indemnity  for  that  debt  from  his  partners  accord- 
properly  contracted,  and  within  the  scope  of  the  business  of  the  partnership,  ac- 
cording to  the  rules  before  laid  down.  But  it  must  be  remembered  that  a  partner 
in  a  non-trading  partnership  would  frequently  be  held  to  have  no  power  to  bind 
his  co-partners,  when  he  would  be  able  so  to  do  in  a  partnership  in  trade.  For 
instance,  one  of  several  persons  jointly  interested  in  a  farm  has  no  power  to  bind 
the  others  by  drawing  or  accepting  bills,  because  it  is  not  necessary  for  the  pur- 
pose of  carrying  on  the  farming  business,  that  bills  should  be  drawn  or  accept- 
ed;  per  Littledale  J.,  10  B.  &  Ores.  139;  and  it  would  be  the  same  as  to  a  mining 
concern.  Dickinson  v.  Valpy,  10  B.  &  Ores.  128  ;  Mullet  v.  Huchison,  7  B.  &  Cres. 
639;  Thicknesse  v.  Bromilow,  2  Crompt.  &  Jerv.  435;  Greenslade  v.  Dower,  7 
Barn.  &  Cres.  635 ;  Stor.  Partn.  190. 


OBLIGATIONS     OF    PARTNERS.  67 

ing  to  the  share  which  they  ought  to  bear  of  it,  when  it  has  turned  to 
the  profit  of  the  partnership. 

106.  With  regard  to  universal  partnerships,  it  must  in  like  manner 
be  decided  that  the  partners  not  being  commercial  partners,  when  they 
contract  together,  render   themselves  liable   towards  the  creditor  with 
whom  they  contract  together,  each  for  his  share  only,  as  we  have  seen 
with  regard  to  particular  partnerships  not  being  commercial  partnerships. 
But  in  these  universal  partnerships,  each  of  the  partners  being  unable  to 
contract  for  his  own  profit,  is  readily    presumed,   when  he    contracts, 
although  alone,  to  contract  in  the  name  of  the  partnership  ;  and  he  conse- 
quently binds  each  of  his  partners,  according  to  their  respective  shares 
in  the  partnership. 

107.  With  regard  to  the  manner  in  which  each  of  the  partners  is  bound  in 
that  kind  of  universal  partnerships  which  takes  place  between  husband 
and  wife,  and  in  that  which  the  survivor  of  two  persons  united  by  mar- 
riage contracts  in  default  of  an  inventory,  see  what  is  said  in  my  intro- 
duction to  the  "Title  of  Community,"  chap.  7,  and  in  that  to  the  "Title 
of  Partnership,"  sect.  1,  §  7,  and  sect.  2,  §  6. 


SEVENTH   CHAPTER. 

*The  respective  Obligations  of  Partners;  and  the  Action  Pro  i-*oi  •* 

Socio. 

•108.  THE  contract  of  partnership  forms  between  the  partners  who  are 
the  contracting  parties,  reciprocal  obligations, — whence  arises  the  action 
called,  in  the  Roman  law,  pro  socio,  which  each  partner  can  bring  against 
the  others  in  order  to  compel  their  performance. 

The  principal  objects  of  these  obligations  are,  1.  That  each  partner  is 
bound  to  account  to  his  copartners  for  whatever  he  dwes  to  the  partner- 
ship, after  deducting  what  is  due  to  him  by  it :  2.  That  each  partner  is 
bound,  according  to  his  share  in  the  partnership,  to  account  for  what  is 
due  to  his  partners,  by  the  partnership,  after  deducting  what  they  owe  to 
it.  We  shall  treat,  in  the  two  first  articles  of  this  Chapter,  of  these  two 
principal  objects  :  we  shall  bring  together  in  the  third,  some  other  ob- 
jects of  the  obligations  which  partners  contract  towards  each  other  :  then 
we  shall  treat,  in  the  fourth,  of  the  action  Pro  /Socio,  which  arises  from 
these  obligations. 

First  Article. 

As  to  the  different  Things  which  each  of  the  Partners  can  owe  to  the 
Partnership,  and  for  which  he  is  obliged  to  account  to  his  Copartners. 

109.  These  things  are,  1st,  what  each  of  the  partners  has  agreed,  by 
the  contract  of  partnership,  to  contribute  thereto,  whilst  he  has  not  yet 
done  so ;  2nd,  what  each  of  them  has  drawn  from  the  common  funds  for 


68  POTHIER    ON    PARTNERSHIP. 

his  private  use ;  3rd,  compensation  for  the  damage  which  by  his  own 
fault  he  has  caused  to  the  property  or  the  affairs  of  the  partnership. 


r*891        *§  ^"  ~^s  *°  w^a^  a  Partner  lias  agreed  to  contribute  to  Part- 
nership. 

110.  It  is  evident  that  each  of  the  partners  is  debtor  to  the  partner- 
ship for  all  that  he  has  promised  to  contribute  thereto. 

But  when  the  things  he  has  promised  to  contribute  are  certain  and 
specific,  if  they  happen  to  perish  without  his  fault,  and  before  he  has 
been  (comtitu6  en  demeure\  put  into  default  by  his  partner  in  bringing 
them  into  the  partnership,  he  is  discharged  from  his  obligation  in  the 
same  manner  as  if  he  had  brought  them  in.  This  is  conformable  with 
the  principles  of  the  law  established  in  my  "  Treatise  on  Obligations," 
part  3,  chap  6,  according  to  which,  in  all  debts  of  a  specific  character, 
the  thing  due  is  at  the  risk  of  the  creditor  to  whom  it  is  due,  and  the 
debtor  is  released  if  it  has  perished,  without  his  fault,  and  before  he  has 
been  put  into  default,  in  discharging  it. 

This  will  be  made  clear  by  an  example.  James,  proposes  to  his  friend 
Peter,  a  retail  wine  merchant,  to  enter  into  partnership  with  him  in  the 
wine  trade ;  in  consequence,  they  execute  a  contract  of  partnership,  to 
which  Peter  brings  a  hundred  casks  of  wine  which  he  has  in  his  cellar. 
James,  on  his  side,  agrees  to  contribute  thereto,  and  to  place  in  Peter's 
cellar  a  hundred  other  casks  of  wine,  arising  from  the  vintage  of  a  cer- 
tain (maison  de  vignes}  vineyard-house  of  the  said  James,  and  which  was 
yet  in  the  cellar  of  that  house,  where  Peter  had  tasted  them ;  and  the 
parties  agree  to  share  in  moieties  the  sum  which  should  arise  frqm 
that  partnership,  after  first  deducting  the  expenses,  a  certain  sum  which 
it  is  agreed  Peter  shall  have  for  his  trouble.  Afterwards,  before' James 
is  put  into  default  in  carrying  the  hundred  casks  of  wine  into  the  cellar 
of  the  partnership,  the  cellar  where  they  are  is  struck  by  lightning  and 
the  greater  part  is  destroyed.  That  loss  having  arisen  (par  une  force 
majeure\  from  unavoidable  accident,  without  James's  fault,  and  before 
he  is  put  into  delay,  ought  to  fall  upon  the  partnership,  and  not  upon 
^ames  al°nej  who,  by  carrying  into  the  *partnership  cellar  what 
escaped  from  the  lightning,  will  discharge  his  obligation  in  the 
same  way  as  if  he  had  carried  the  whole.  But  if  that  accident  of  the 
lightning  does  not  happen  until  after  James  is  put  into  delay,  by  a  judi- 
cial summons  which  Peter  serves  upon  him,  to  carry  into  the  cellar  of  the 
partnership  the  hundred  casks  of  wine  which  he  binds  himself  to  carry 
there,  the  loss,  in  that  case,  will  not  fall  upon  the  partnership,  which 
ought  not  to  suffer  from  the  wrongful  delay  of  James;  and,  notwith- 
standing the  accident,  James  remains  debtor  towards  the  partnership 
for  the  hundred  casks  of  wine  which  he  agrees  to  contribute  thereto.  See 
my  "  Treatise  on  Obligations,"  n.  649. 

111.  It  is  only  in  the  shape  of  damages  for  the  loss  which  the  partner 
occasions  to  the  partnership  by  his  delay  in  contributing  certain  things 
thereto  according  to  his  agreement  that  he  remains  a  debtor  for  those 
things,  although  they  have  perished  by  unavoidable  accident.     It  is  for 


OBLIGATIONS  OF  PARTNERS.  69 

this  reason  that  he  ought  to  remain  a  debtor  in  that  case  only,  in  which 
the  thing  either  has  not  entirely  perished,  or  has  not  perished,  until  after 
the  partnership  would  have  had  time  to  resell  it,  if  he  had  not  been  in 
delay  in  satisfying  his  obligation ;  as  in  the  preceding  case,  in  which  the 
hundred  casks  of  wine  which  the  lightning  destroyed  in  the  cellar  of 
James  would  not  have  perished  if  they  had  not  been  there,  and  they  had 
been  in  the  cellar  of  the  partnership,  where  James  had  been  put  into 
default  in  bringing  them. 

But  if  the  loss  of  specific  things  which  a  partner  has  agreed  to  bring 
to  the  partnership  (although  it  has  happened  after  he  has  been  put  into 
default  in  bringing  them  into  it)  would  have  been  sustained  by  the  partner- 
ship, even  although  he  should  have  fulfilled  his  obligation,  the  partner- 
ship, in  that  case,  not  suffering  from  delay,  the  loss  of  the  thing  ought 
not  to  fall  upon  that  partner  alone,  but  upon  the  partnership  to  which  it 
was  owing.  For  example,  if  I  enter  into  a  commercial  partnership  with 
several  persons  for  a  trade  in  the  refining  of  sugar,  to  which,  amongst 
other  things,  I  agree  to  furnish  a  certain  warehouse  belonging  to  me,  to 
be  the  common  property  of  all  the  partners,  and  after  I  am  put  into  de- 
fault, in  delivering  the  keys  of  it  to  the  manager  of  the  *partner-  r  #fi  .  .. 
ship,  the  warehouse  is  burnt  by  lightning,  that  loss,  although  it  L 
has  happened  since  my  delay  in  fulfilling  my  obligation,  will  fall  upon 
the  partnership,  which  would  equally  have  sustained  the  loss  if  I  had 
fulfilled  my  obligation,  and  I  shall  be  discharged  from  it  by  putting  the 
partnership  in  possession  of  the  place  and  the  materials  which  remain, 
in  order  that  the  warehouse  may  be  rebuilt  at  the  expense  of  the  partner- 
ship. 

112.  Nothing  that  has  been  said  as  to  the  extinction  of  things  which  a 
partner  has  agreed  to  bring  to  the  partnership  has  any  application  except 
when  these  things  are  certain  and  specific  subjects. 

But  when  that  which  a  partner  has  agreed  to  bring  to  a  partnership  is 
a  certain  sum  of  money,  or  a  certain  quantity  of  wheat,  wine,  &c.,  or  in- 
definite subjects,  as  so  many  cows,  without  mentioning  what  cows,  it  is 
clear,  that  such  questions  cannot  arise,  as  there  can  be  no  existence  of 
that  which  is  indefinite ;  genus  nunquam  perit.  See  my  "  Treatise  on 
Obligations,"  n.  658. 

This  will  be  sufficient  for  deciding  the  following  case.  Suppose  that 
we  entered  into  a  partnership  to  go  and  buy  in  different  provinces  certain 
merchandise,  which  we  propose  to  bring  here  to  resell,  and  we  each  of 
us  agree  to  contribute  a  thousand  crowns  to  that  partnership.  If  before 
fulfilling  that  agreement  thieves  forced  open  your  strong  box,  and  robbed 
you  of  the  thousand  crowns  which  you  destined  for  the  partnership,  that 
loss  will  not  fall  upon  the  partnership,  because  the  moneys  of  which  you 
have  been  robbed  not  only  did  not  belong  to  the  partnership,  but  it  can- 
not even  be  said  that  you  were  robbed  of  those  very  moneys  of  which 
you  were  debtor  to  the  partnership.  Hence  the  robbery  which  has  be- 
fallen you  cannot  procure  you  a  discharge  from  the  thousand  crowns 
which  you  have  agreed  to  bring  into  the  partnership. 

But  if,  having  set  out  to  trade,  in  execution  of  your  contract  of  part- 
nership, you  had  taken  that  sum  with  you,  and  a  person  had  robbed  you 


70  POTHIER    ON    PARTNERSHIP. 

on  the  way,  the  loss  will  fall  on  the  partnership ;  for  you  will  be  con- 
sidered to  have  paid  the  partnership  the  sum  of  one  thousand  crowns 
i-^ne  -,  which  you  owed  *to  it  by  carrying  with  you  those  moneys  for 
J  the  journey  made  on  account  of  the  partnership.  These  moneys 
thereby  became  the  moneys  of  the  partnership,  the  robbery  of  which 
ought  consequently  to  fall  upon  it.  Celsus  tractat :  si  pecuniam  contulis- 
semus  ad  mercem  emendam,  et  mea  pecunia  perisset,  cui  perierit  ea  f 
Et  ait:  si  post  collationem  evenit  ut  pecunia  periret,  quod  non  fieret  nisi 
societas  coita  esset,  utrique  perire  ;  ut  puta,  si  pecunia,  cum  peregre  por- 
taretur  ad  mercem  emendam,  periit :  si  verb  ante  collationem,  posieaquam 
earn  destinasses  tune  perierit,  nihil  eo  nomine  consequeris,  inquit ;  quia 
non  societati  periit ;  1.  58,  §  1,  ff.  Pro.  Soc.  (Dig.  lib.  xvii.  tit.  2,  1. 
58,  §  1.) 

113.  Although   a  partner  has  brought  things  into  the  partnership 
according   to  his  agreement,   if,   afterwards,   the  partnership  (en  a  ete 
evincee)  has  been  dispossessed  of  them,  he  remains  its  debtor,  as  though 
he  had  not  brought  them  into  it ;  arg.  1.  3,  ff.  De  Act.  Empt.  (Dig.  lib. 
xiv.  1.  3) ;  for  the  contract  of  partnership,  like  that  of  sale,  being  com- 
mutative or  bilateral,  the  partner  who  thereby  agrees  to  contribute  some 
certain  and  specific  object,  contracts  towards  the  partnership  the  same 
obligation  of  warranty,  in  case  of  the  dispossession  of  that  thing  which 
he  has  brought  into  the  partnership,  as  a  vendor  contracts  towards  a 
purchaser.     See  what  I  have  said  in  my  "  Treatise  on   the  Contract  of 
Sale,"  2,  3,  and  4. 

114.  In  universal  partnerships  of  all  gooc!s,  there  is  no  warranty  in 
case  of  eviction  from  any  of  the  estates  of  which  one  of  the  partners  was 
possessor  at  the  time  of  the  contract,  for  in  these  partnerships,  it  is  his 
property  in  general,  and  not  any  specific  estate,  which  each  partner  binds 
himself  to  bring  into  the  partnership. 

115.  When  the  things  which  one  partner  has  agreed  to  bring  to  the 
partnership  produce  fruits  or  profits,  he  is  debtor  to  the  partnership  not 
only  for  such  things,  but  also  for  all  the  fruits  which  he  has  taken  from 
them  since  the  time  when  they  ought  to  have  been  brought  into  the  part- 
r  *»fi  _  ship.      *In  societatibus  fructus  communicandi  sunt ;  1.  38,  §  9, 

-I  ff.  De  Usur.  (Dig.  lib.  xxii.  tit.  1,  1.  38,  §  9.) 
As  long  as  he  has  not  been  put  into  default  in  bringing  the  things  which 
he  has  promised  into  the  partnership,  he  is  only  bound  to  account  for 
such  of  their  fruits  as  he  has  taken.  But  after  he  has  been  put  into 
delay,  he  is  bound  to  account  even  for  those  which  he  has  not  taken,  and 
which  the  partnership  had  the  right  to  take.  Because  it  is  an  effect  of 
the  default  to  oblige  the  debtor  to  indemnify  his  creditor  for  all  that  he 
has  suffered  by  his  delay. 

116.  When  a  partner  has  agreed  to  bring  a  sum  of  money  into  partner- 
ship, he  will  owe  interest  to  the  partnership  from  the  day  he  was  put 

"3  Each  partner  is  debtor  to  the  partnership  for  all  that  he  has  promised  to 
bring  therein :  when  such  contribution  consists  of  a  certain  thing,  and  the  part- 
nership is  evicted  therefrom,  the  partner  is  surety  therefor  to  the  partnership,  in 
the  same  manner  as  a  vendor  is  to  his  purchaser.  Civ.  Cod.  of  France,  1845. 


OBLIGATIONS    OF    PARTNERS.  71 

into  default  by  his  partners  in  bringing  it  in,  in  the  same  manner  as  any 
other  debtor. 

117.  When  a  partner  has  not  promised  to  bring  property  itself  into  a 
partnership,  but  only  its  use  and  enjoyment,  it  is  clear  that  he  is  not,  in 
such  case,  debtor  for  it  to  the  partnership ;  but  only  for  the  fruits  or  in- 
terest, according  to  the  distinctions  above  set  forth. 

§  II.  As  to  what  each  of  the  Partners  has  withdrawn  from  the  common 

Funds. 

118.  Each  of  the  partners  ought  to  restore  to  the  common  .-  ^£,_  -, 
*stock  all  that  he  has  withdrawn  from  it;  and  he  is  consequently  L 
answerable  for  it  to  the  partnership. 

For  example,  if  one  of  the  partners  has  taken  from  the  partnership 
chest  a  sum  of  money,  in  order  to  employ  it  in  his  private  affairs,  it  is 
clear  that  he  is  a  debtor  for  that  amount  to  the  partnership. 

119.  He  owes  also  interest  for  it,  according  to  the  law,  1,  §  1,  ff.  De 
Usur.  (Dig.  lib.  xxii.  tit.   1,  §  1.)     Sonus  si  ideo  condemnandus  erit, 
quod  pecuniam  communem  invaserit,  vel  in  suos  usus  converterit}  omni- 
modo,  etiam  mord  non  interveniente,  praestabuntur  usurse. 

In  universal  partnerships,  into  which  all  the  revenues  of  the  property 
of  each  of  the  partners  fall,  although  the  ownership  is  not  common,  such 
as  is  that  which  takes  place  between  persons  joined  by  marriage,  the  in- 
terest of  the  sums  which  one  of  the  partners  has  taken  from  the  common 
chest  for  his  private  affairs  only  commences  to  run  from  the  day  of  the 
dissolution  of  the  community;  as  long  as  it  lasts,  there  is  a  confusion  of 
that  interest,  which  is  a  charge  on  the  revenues  of  the  property  of  that 
partner,  which  fall  into  the  partnership. 

120.  Each  of  the  partners  obliging  himself  to  bring  into  *the  ,-  ^Q  , 
partnership  his  industry,  the  industry  of  each  becomes  a  common  L 

117  The  partner  who  is  bound  to  contribute  a  sum  to  the  partnership,  and  who 
has  not  done  so,  becomes,  absolutely  and  without  demand,  debtor  for  the  interest 
of  such  sum,  computing  from  the  day  on  which  it  ought  to  have  been  paid. 

It  is  the  same  with  regard  to  sums  which  he  has  taken  from  the  partnership 
chest,  computing  from  the  day  on  which  he  took  them  for  his  private  use. 

The  whole  without  prejudice  to  more  ample  damages,  if  there  be  any  grounds. 
Civ.  Cod.  of  France,  1846. 

So,  according  to  our  law,  a  partner  is  debtor  to  the  firm  for  what  he  has  agreed 
to  contribute  thereto ;  thus,  in  Akhurst  v.  Jackson,  1  Swanst.  85,  a  sole  trader 
having  agreed,  in  consideration  of  a  sum  payable  by  instalments,  to  take  two  per- 
sons into  partnership  with  him  for  a  period  of  eighteen  years,  and  having  become 
bankrupt  five  months  after  the  commencement  of  the  partnership,  when  only  one 
instalment  was  due,  his  assignees  were  held  to  be  entitled,  at  the  respective  periods, 
to  receive  the  remaining  instalment.  And  see  Coll.  Partn.  141  ;  Stor.  Partn.  302. 

»*  See  Civ.  Cod.  of  France,  1846,  ante,  117,  note.  According  to  our  law  each 
partner  has  a  specific  lien  on  the  present  and  future  property  of  the  partnership, 
for  all  debts  due  to  the  firm  for  moneys  abstracted  by  any  other  partner  from  such 
stock  and  funds  beyond  his  own  share,  and  the  stock  and  funds  so  taken,  if  iden- 
tified, are  applicable  to  the  payment  of  what,  upon  an  account  taken,  is  due  from 
him  to  the  partnership,  before  any  of  it  can  be  applied  to  the  payment  of  his  debts 
due  to  his  private  creditors.  West  v.  Skip,  1  Ves.  139.  240.  242  ;  Skip  v.  Harwood, 
2  Swanst.  586  ;  Croft  v.  Pyke,  3  P.  Wms.  180  ;  Coll.  Partn.  11.  178  ;  Stor.  Partn. 
137. 

120  The  partners  who  are  under  an  obligation  to  bring  in  their  industry  to  the 


72  POTHIEK,    ON    PARTNERSHIP. 

capital;  and  all  the  gains  that  each  has  made  thereby  ought  to  be  ac- 
counted for  and  brought  into  the  common  fund. 

In  universal  partnerships,  each  of  the  partners  ought  to  account  to  the 
partnership  for  all  the  honest  gains  which  he  has  made  by  his  industry 
of  every  kind;  but  in  particular  partnerships,  each  partner  being  con- 
sidered to  bring  into  the  partnership  that  kind  of  industry  only  which 
has  relation  to  the  object  of  the  partnership,  he  ought  to  account  to  the 
partnership  for  the  gains  only  which  arise  from  that  kind  of  industry, 
and  not  for  those  which  may  arise  from  any  other. 

For  example,  if  two  shoemakers  contract  together  a  partnership  in 
their  craft  for  a  certain  time,  each  of  these  partners  will  be  bound  to 
account  to  the  partnership  for  all  the  profits  which  he  may  have  made 
by  his  craft  as  shoemaker.  But  if  one  of  them  were  possessed  of  the 
talent  of  teaching  birds  to  sing,  he  will  not  be  obliged  to  account  to  the 
partnership  for  the  gains  which  he  may  have  made  thereby  whilst  he 
worked,  because  it  is  not  this  kind  of  industry,  but  only  that  which  has 
relation  to  his  craft  of  shoemaker,  which  he  has  promised  to  bring  into 
the  partnership. 

121.  When  one  of  the  partners  has  a  debt  due  to  him  in  his  private 
capacity  from  a  person  who  is  also  a  debtor  of  the  partnership,  he  ought 
to  appropriate  what  he  receives  to  the  credit  of  the  partnership  and  him- 
self, in  proportion  to  the  amount  of  each  debt. 

f  *KQ  1  ^or  example>  ^  tne  partnership  was  a  creditor  of  Peter  for  *a 
-I  sum  of  2000  livres,  and  one  of  the  partners  was  the  private  cre- 
ditor of  the  same  Peter  for  another  sum  of  1000  livres,  the  debt  due 
to  the  partnership  being  double  the  private  debt  due  to  that  partner,  he 
ought  to  account  to  the  partnership  for  two-thirds  of  what  he  may  receive 
from  Peter,  as  he  will  be  considered  to  have  received  these  two-thirds  on 

partnership,  owe  to  it  an  account  of  all  the  profits  which  they  have  made  by  the 
kind  of  industry  which  is  the  object  of  such  partnership.  Civ.  Cod.  of  France, 
1847.  Our  law  is  similar,  and  a  Court  of  Equity  will  prevent  partners  from  thus 
failing  in  their  duties  to  each  other.  "  The  principles  of  Courts  of  Equity,"  ob- 
serves Sir  John  Leach,  "  will  not  permit  that  parties,  bound  to  each  other  by 
express  or  implied  contracts  to  promote  an  undertaking  for  the  common  benefit, 
shall  any  of  them  engage  in  another  concern  which  necessarily  gives  them  a  direct 
interest  averse  to  that  undertaking.  For  example,  there  is  necessarily  some  dan- 
ger of  rivalry  between  a  morning  and  an  evening  paper,  especially  in  the  country. 
It  might  clearly,  therefore,  be  made  a  question,  whether  it  would  be  a  due  act  of 
management  in  the  partnership  concern  of  a  morning  paper  to  assist,  with  its  pro- 
perty and  its  labour,  the  publication  of  any  other  newspaper  so  as  to  enable  the 
majority  of  the  partners  in  that  respect  to  bind  the  minority."  Glassington  v. 
Thwaites,  1  S.  &  S.  133.  In  this  case,  however,  it  was  held  that  a  temptation  to 
abuse  the  partnership  property  was  not  sufficient  to  induce  the  Court  to  interfere 
by  injunction.  See  also  Burton  v.  Wookey,  6  Madd.  367  ;  and  see  England  v.  Curl- 
ing, 8  Beav.  129;  Coll.  Partn.  121. 

121  When  one  of  the  partners  is,  on  his  own  private  account,  a  creditor  for  a  sum 
due  from  a  person  who  also  owes  to  the  partnership  a  sum  equally  due,  what  he 
receives  from  such  debtor  must  be  appropriated  in  payment  of  the  debt  due  to  the 
partnership  and  to  himself,  in  the  proportion  of  the  two  debts,  although  he  may  in 
his  receipt  have  directed  the  whole  sum  to  be  appropriated  in  payment  of  the  debt 
due  to  himself;  but  if  he  have  expressed  in  his  receipt  that  it  shall  be  appropriated 
entirely  in  payment  of  the  debt  due  to  the  partnership,  such  stipulation  shall  be 
executed.  Civ.  Cod.  of  France,  1848. 


OBLIGATIONS    OP    PARTNERS.  73 

account  of  the  debt  of  the  partnership  :  even  if,  by  the  receipt  which  he 
may  have  given  for  it,  he  have  appropriated  it  entirely  to  the  account  of 
his  own  private  debt ;  for  as  he  owes  to  the  affairs  of  the  partnership  the 
same  care  as  to  his  own  private  affairs,  it  is  not  allowable  for  him  to  ob- 
tain payment  of  his  own  debt  preferably  to  that  of  the  partnership. 

122.  When  one  of  the  partners  has  obtained  payment  from  a  debtor 
of  the  partnership  of  the  whole  of  his  share  of  the  debt,  and  has  given 
him  a  receipt  for  his  share  ;  if  that  debtor  afterwards  becomes  insolvent, 
and  the  other  partner  cannot  be  paid  his  share  in  full,  will  the  partner 
who  has  received  the  whole  of  his  share  be  bound  to  bring  into  the  com- 
mon stock  what  he  has  received  more  than  the  other  ?     For  the  negative, 
it  may  be  said  that  what  that  partner  has  received  from  the  debtor  of 
the  partnership  does  not  come  to  him  from  the  common  stock,  but  from 
his  share  in  one  of  the  effects  of  the  partnership  :  non  de  media  tulit,  sed 
tantummodd  quod  sibi  pro  parte  socii  debebatur  recepit ;  the  other  part- 
ner ought  to  blame  himself  for  not  having  been  equally  vigilant  in  re- 
quiring his. 

Notwithstanding  these  reasons,  Ulpian,  in  the  law  63,  §  5,  ff.  Pro  Soc. 
(Dig.  lib.  xvii.  tit.  2,  1.  63,  §  5,)  decides  that  such  one  of  the  partners 
who  has  received  the  whole  of  his  share  ought  to  bring  into  the  common 
stock  what  he  has  received  more  than  the  other  partner,  quasi  iniquum 
sit,  ex  eddem  societate,  alium  plus,  alium  minus  consequi. 

This  appears  contrary  to  what  is  decided  between  coheirs  in  the  law 
38,  ff.  Fam.  Ercis.  (Dig.  lib.  x.  tit.  2,  1.  38);  but  there  is  no  analogy 
between  the  two  cases.  In  supposing,  *in  the  case  of  the  former  r  .^  -, 
law  (63),  that  the  partners  had  a  reciprocal  power  (as  is  often  L 
the  case)  to  act  one  for  another  in  the  affairs  of  the  partnership,  and  to  com- 
pel, one  on  behalf  of  the  other,  payment  by  debtors ;  in  that  case,  a  part- 
ner ought  to  bring  into  the  common  stock  what  he  has  received  from  that 
debtor,  because,  it  being  his  duty  to  require  it  on  account  of  the  partner- 
ship, he  ought  not  to  have  preferred  his  own  private  interest  to  that  of 
the  partnership.  In  the  case  of  the  law  38,  the  coheirs  had  not  con- 
tracted a  similar  engagement  between  themselves.  For  the  same  reason, 
if  one  of  the  partners  meeting  with  an  opportunity  of  selling  advantage- 
ously the  goods  of  the  partnership,  instead  of  making  a  bargain  on  ac- 
count of  the  partnership,  makes  one  on  his  own  private  account,  by  sell- 
ing his  share  in  the  goods  of  the  partnership,  he  will  be  obliged  to  bring 
back  into  the  common  stock  what  he  has  sold  for  his  own  share  more 
than  the  other  partner  has  sold  of  his. 

It  would  be  otherwise,  if  one  of  the  partners  had  sold  his  share  in  a 
thing  belonging  to  the  partnership  which  was  not  intended  to  be  sold  for 
its  profit;  although  the  other  partner  had  sold  less  of  his  than  he  has,  he 
will  not  be  obliged  to  account  to  him  for  what  he  has  sold  more  than  such 
partner  has. 

123.  Each  of  the  partners  is  bound  to  bring  to  the  common  stock  the 

>**  When  one  of  the  partners  has  received  the  whole  of  his  share  of  a  common 
debt,  and  the  debtor  has  subsequently  become  insolvent,  such  partner  is  bound  to 
bring  back  what  he  has  received  to  the  common  stock,  although  he  may  have  spe- 
cially given  a  receipt  for  his  share.  Civ.  Cod.  of  France,  1849. 


74  POTHIBR    ON    PARTNERS..  r P. 

profits  only  which  come  to  him  from  the  partnership,  and  not  those  of 
•which  the  partnership  has  been  only  the  accidental  cause.  For  example, 
if  one  of  the  partners,  in  doing  the  business  of  the  partnership,  has  formed 
an  acquaintance  with  a  rich  and  liberal  person,  whom  he  would  not  other- 
wise have  known,  and  such  person  whose  friendship  he  has  gained,  confers 
upon  him  some  donation  or  legacy,  he  will  not  be  obliged  to  bring  it  into 
the  common  stock,  although  the  partnership  has  been  the  accidental  cause 
of  his  obtaining  it.  Sednec  compendium  quod  propter  societatem  ei  con- 
tigisset,  veniret  in  medium,  velutt  si  propter  societatem  hseres  fuisset  in- 
slitutus,  aut  quid  ei  donatum  esset;  1.  60;  ff.  1.  Pro.  Soc.  (Dig.  lib. 
xvii.  tit.  2,  1.  60,  §  1.) 

r  *oi  -\  *§  m*   Of  the  Loss  that  one  Partner  has  caused  to  the  Partner- 
ship. 

124.  Among  the  liabilities  for  which  a  partner  is  accountable  to  the 
partnership,  there  must  be  comprehended  the  sums  to  which  the  estimate 
of  the  damages  caused  by  his  fault  to  the  effects  or  affairs  of  the  partner- 
ship amounts. 

Each  of  the  partners  is  bound  in  this  respect  only  for  an  ordinary 
fault,  and  not  for  the  lightest  fault.  There  can  only  be  required  from 
him  the  care  of  which  he  is  capable  and  which  he  applies  to  his  own 
affairs.  If  he  has  not  the  same  foresight  which  the  most  able  men  display 
in  their  affairs,  his  partners  cannot  impute  blame  to  him,  but  rather  to 
themselves  for  having  entered  into  partnership  with  him  :  Culpa  non  ad 
exactissimam  diligentiam  dirigenda  est;  sufficit  etenim  talem  diligentiam 
communibus  rebus  adhibere,  qualem  suis  rebus  adhibere  solet;  quia  qui 
parum  diligentem  sibi  socium  adquirit,  de  se  queri  debet  diet.  ley.  72,  ff. 
Pro.  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  72.) 

A  partner  is  moreover  liable  even  for  faults  of  omission,  as  if,  for  ex- 
ample, by  an  inexcusable  fault,  he  has  failed  to  make  a  purchase  advan- 
tageous to  the  partnership  :  Si  qui  societatem  ad  emendum  co'ierint,  de- 
inde  res  alterius  dolo  vel  culpd  empta  non  sit,  pro  socio  esse  actionem  con- 
stat;  1.  52,  §  11,  ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2, 1.  52,  §  11.) 

Can  a  partner  excuse  himself  even  for  gross  negligence,  if  it  is  clear 
that  he  is  equally  negligent  in  his  own  affairs  ?  No  :  if  there  is  not  re- 
quired from  a  partner,  for  the  affairs  of  the  partnership,  the  most  exact 
care  such  as  the  most  able  men  (peres  defamille}  display  in  their  affairs, 
it  is  because  he  is  incapable  of  such  care.  But  each  person  is  presumed 
to  be  capable  of  that  ordinary  care  which  the  least  intelligent  persons 
exhibit  in  the  management  of  their  own  affairs ;  and  when  he  does  not 
exercise  such  care  it  is  presumed  that  it  is  from  voluntary  and  culpable 
indolence,  for  which,  in  truth,  he  is  not  accountable  to  any  one  with  re- 
gard to  his  own  private  affairs,  but  for  which  he  is  accountable  to  his 
partners,  when  he  has  been  guilty  of  that  indolence  in  their  common 
affairs. 

T  *Q9  1       *125.  It  remains  to  observe  that  a  partner  cannot  excuse  him- 
•I  self  from  accounting  to  the  partnership  for  the  loss  which  he  has 

125  Each  partner  is  bound  towards  the  partnership  for  damages  occasioned  by 


OBLIGATIONS    OF    PARTNERS.  75 

caused  by  his  fault  in  any  affair,  by  setting  off  against  it  profits  to  a  more 
considerable  amount  which  he  has  made  for  the  partnership  by  his  in- 
dustry in  other  affairs :  Nbn  ob  earn  rem  minus  ad  periculum  socii  per- 
tinent quod  negligentid  ejus  periisset,  quod  inplerisque  aliis  industria  ejus 
socif.tas  aucta  fuisset  et  hoc  ex  appellations  Imperator  pronuntiavit ;  1.  25, 
ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2,  1.  25).  Et  idea,  si  socius  qusedam 
negligenter  in  societate  egisset,  in  plerisque  autem  societatem  auxisset,  non 
compensatur  compendium  cum  negligentid;  1.  26.  The  reason  is,  that 
as  such  partner  owes  to  the  partnership  his  industry,  he  has  only  dis- 
charged his  duty  by  bringing  thereto  the  profits  which  he  has  made  by 
his  industry  ;  the  partnership  owes  him  nothing  which  he  can  set  off 
against  what  he  owes  to  it. 


Second  Article. 

As  to  the  Things  for  which  a  Partner  may  be  creditor  of  the  Partnership, 
and  for  which  the  other  Partners  are  obliged  to  account  to  him,  accord- 
ing to  his  Share  in  the  Partnership. 

126.  When  a  partner  has  put  things  into  the  partnership  the  enjoy- 
ment or  use  whereof  alone  he  owed  by  the  Contract  of  Partnership,  he  is 
creditor  of  the  partnership  for  such  things  which  ought  to  be  restored  to 
him  at  the  dissolution  of  the  partnership. 

*If  they  consisted  of  certain  and  specific  things  which  are  not  .-  ¥qq  -. 
consumed  by  use,  nor  intended  to  be  sold,  and  which  he  has  a  "- 
right  to  receive  in  kind  at  the  dissolution  of  the  partnership,  these  things 
remain  at  his  risk,  and  not  at  the  risk  of  the  partnership.  If,  without 
the  fault  of  his  partners,  they  have  deteriorated,  he  will  receive  them  in 
the  state  in  which  they  are,  and  if  they  have  entirely  perished  by  {force 
majeure}  unavoidable  accident,  the  partnership  will  be  discharged  of  the 
obligation  of  restoring  them  to  him. 

On  the  contrary,  if  the  things  a  person  has  put  into  a  partnership  are 
such  as  consume  or  deteriorate  by  keeping,  or  were  intended  to  be  sold, 
and  had  been  put  into  the  partnership,  at  a  certain  estimate  contained 
in  some  inventory,  the  partner  who  has  put  them  into  it,  in  order  that 
the  partnership  should  have  only  the  enjoyment  thereof,  is  creditor,  not 
for  the  things  themselves,  but  for  the  sum  at  which  they  have  been 
valued  ;  and  these  things  are  not  at  his  risk,  but  at  that  of  the  partner- 
ship. 

his  own  fault,  without  being  able  to  set  off  against  such  damages  the  profits  which 
his  skill  shall  have  procured  for  it  in  other  affairs.  Civ.  Cod.  of  France,  1850. 
See  Stor.  Partn.  261 — 264. 

146  If  things  of  which  the  enjoyment  only  has  been  pnt  into  the  partnership  are 
certain  and  determinate  objects,  which  do  not  consume  by  use,  they  are  at  the  risk 
of  the  partner  who  is  the  owner. 

If  such  things  do  consume  by  use,  if  they  deteriorate  by  keeping,  if  they  were 
intended  to  be  sold,  or  if  they  were  put  into  the  partnership  at  a  valuation  con- 
tained in  an  inventory,  they  are  at  the  risk  of  the  partnership. 

If  the  thing  was  valued,  the  partner  can  only  recover  the  amount  of  the  valua- 
tion. Civ.  Cod.  of  France,  1851. 


76  POTHIER    ON    PARTNERSHIP. 

127.  A  partner  moreover  may  be  creditor  of  the  partnership  for  sums 
which  he  has  disbursed  in  its  affairs;  for  instance,  for  the  expenses  of 
journeys  which  he  has  made  for  the  said  affairs :  1.  52,  §  15,  ff.  Diet. 
Tit.     (Dig.  lib.  xvii.  tit.  2,  1.  52,  §  15.) 

Not  only  if  he  has  made  disbursements,  but  if  he  has  contracted  any 
obligation  for  the  affairs  of  the  partnership,  he  ought  to  be  indemnified 
by  the  partnership. 

For  example;  if  one  of  the  partners  sell  to  any  one  property  belonging  to 
and  on  account  of  the  partnership,  he  ought  to  be  indemnified  by  it  from 
the  obligation  of  warranty  which  he  has  contracted  towards  the  purchaser; 
1.  67,  ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2, 1.  67.) 

128.  A  partner  ought  to  be  indemnified  by  the  partnership,  not  only 
for  the  disbursements  which  he  has  made  and  the  obligations  which  he 
r  *Q4  1  ^as  contracte(i  directly  and  as  *principal  for  the  affairs  of  the 

J  partnership ;  he  ought  equally  to  be  indemnified  from  the  risks 
and  hazards  which  he  has  incurred,  when  they  are  unavoidable,  in  carry- 
ing on  the  affairs  of  the  partnership,  and  he  only  incurred  them  for  the 
said  affairs  :  because  the  partnership,  being  entitled  to  all  the  profits 
which  result  from  his  exertions,  it  is  equitable  that  it  should  bear  all  the 
risks:  ubi  lucrum,  ibi  et  periculum  esse  debet.  This  has  given  rise  to 
the  question,  which  has  been  agitated  among  the  jurisconsults  of  the  two 
sects, — namely,  whether  one  of  the  partners,  having  been  wounded  by 
the  slaves  whom  he  took  to  sell  at  a  market  on  account  of  the  partner- 
ship, in  endeavouring  to  hinder  them  from  escaping,  ought  to  be  indem- 
nified by  the  partnership  for  the  expense  of  dressings  and  medicaments 
made  use  of  for  his  cure.  Labeo,  chief  of  the  school  of  the  Proculeans, 
held  the  negative,  because  these  expenses  were  not  incurred  for  the  affairs 
of  the  partnership,  which  have  been  only  the  accidental  cause  of  them; 
«  quia}"  says  he,  "  id  non  in  societatem,  quamvis propter  societatem,  im- 
pensum  sit ;"  1.  60,  §  1.  (Dig.  lib.  xvii.  tit.  2,  1.  60,  §  1.) 

On  the  contrary,  Julianus,  who  was  of  the  school  of  the  Sabinians, 
held  the  affirmative,  and  his  opinion  has  prevailed  :  Secundum  Julianum 
tamen,  et  quod  medicis  pro  se  datum  est,  recipere  potest ;  quod  verum  est ; 
1.  61,  ff.  Diet.  Tit.  The  reason  is,  that  the  risk  incurred  by  that  partner 
of  being  maltreated  by  the  slaves,  was  a  risk  inseparable  from  their  con- 
voy, which  he  only  incurred  for  the  affairs  of  the  partnership,  and  from 
which  he  ought  consequently  to  be  indemnified  by  the  partnership. 

For  the  same  reason,  the  same  Julianus  decides  that  if  a  partner,  in  a 
journey  which  he  makes  for  the  affairs  of  the  partnership,  has  been 
attacked  by  robbers,  who  have  robbed  him  and  wounded  his  servants,  the 
partnership  ought  to  indemnify  him  for  what  he  has  lost,  and  the  expense 
which  he  has  incurred  for  the  cure  of  his  servants ;  1.  52,  §  4,  ff.  Pro. 
Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  52,  §  4.) 

129.  Observe  that   the  partnership,  being  bound  only  by  the  risks 

127  A  partner  can  maintain  an  action  against  the  partnership,  not  only  on  ac- 
count of  sums  which  he  has  disbursed  for  it,  but  also  on  account  of  obligations 
which  he  has  contracted  bona  fide  in  the  affairs  of  the  partnership,  and  for  risks 
inseparable  from  their  management.  Civ.  Cod.  of  France,  1852.  See  Stor.  Partn. 
282;  Coll.  Partn.  130.  142.  151 ;  Thornton  v.  Proctor,  1  Anst.  94. 


OBLIGATIONS     OF    PARTNERS.  77 

which  are  inseparable  for  the  carrying  on  of  its  affairs,  it  is  liable  in  the 
above-mentioned  case  only  to  indemnify  the  partner  for  the  robbery  of 
what  it  was  absolutely  *necessary,  having  regard  to  his  condition,  r  ^Q,-  -. 
that  he  should  take  him  on  his  journey.  If  he  had  taken  with  L 
him  more  money  than  was  necessary,  and  things  which  he  might  have 
dispensed  with,  the  partnership  ought  not  to  bear  the  risk  of  that  super- 
fluity, or  to  indemnify  the  partner  if  he  has  been  robbed  of  it. 

In  like  manner,  if  he  has  taken  with  him  too  great  a  number  of  ser- 
vants, the  partnership  is  only  bound  for  the  cure  of  the  wounds  of  those 
who  were  necessary  to  him  for  his  journey. 

130.  If  the  partner,  who  had  taken  with  him  more  money  than  he 
needed  for  the  journey,  had  saved  a  part  of  it  from  the  hands  of  the  rob- 
bers, shall  he  reckon  what  he  has  saved  as  that  part  of  his  money  which 
was  necessary  for  the  journey,  and  which  was  at  the  risk  of  the  partner- 
ship, or  as  the  superfluous  part  which  was  at  his  own  risk  ?     I  think  that 
there  being  no  reason  for  considering  it  to  be  one  rather  than  the  other, 
it  ought  to  be  reckoned  as  part  of  each  in  proportion.     For  example,  if 
a  partner  who  had  only  need  of  ten  pistoles  for  his  journey  took  thirty 
with  him  and  saved  six  of  them,  the  partnership,  which  was  only  charged 
with  the  risk  of  a  third  of  the  thirty  pistoles,  ought  to  profit  only  by  the 
third  of  what  has  escaped  the  robbers,  and  it  ought  consequently  to  im- 
demnify  that  partner  for  eight  pistoles. 

131.  The  partnership  is,  in  fact,  bound  to  indemnify  a  partner  for  the 
losses  which  he  has^suffered,  when  they  are  a  natural  consequence  of  cer- 
tain hazards  inseparable  from  the  carrying  on  of  the  affairs  of  the  part- 
nership, to  which  his  partners  would  be  exposed  in  like  manner  if  they 
had  charged  themselves  therewith  ;  but  it  is  not  obliged  to  imdemnify 
him  for  losses  which  he  has  suffered,  and  of  which  the  carrying  on  of  the 
affairs  of  the  partnership  has  only  been  a  purely  accidental  cause.     For 
example,  if  the  partnership  has  had  a  lawsuit  with  a  person  who  was  a 
friend  of  one  of  the  partners,  and  that  person,  being  provoked  by  it,  re- 
voked a  legacy  *which  he  had  bequeathed  to  him,  or  caused  him  r  ^^  ., 
to  lose  a  commission  which  he  had  procured  for  him,  although  L 

that  partner  has  suffered  these  losses  in  consequence  of  the  partnership, 
there  is  no  ground  for  any  claim  of  indemnity  from  the  partnership. 

In  like  manner  a  partner  cannot  claim  an  indemnity  from  the  partner- 
ship, upon  the  ground  that  the  care  which  he  has  taken  in  the  affairs  of 
the  partnership  has  caused  him  to  neglect  his  own  private  affairs,  because 
he  owed  to  the  affairs  of  the  partnership  the  care  which  he  has  brought 
to  it,  and  he  has  been  paid  for  it  by  the  share  which  he  has  had,  or  might 
have  had,  in  the  profits  of  the  partnership.  This  is  conformable  to  what 
Labeo  decides  in  the  law  60,  §  1,  (Dig.  lib.  xvii.  tit.  2,  1.  60,  §  1,)  that 
it  is  not  due  for  the  indemnity  of  a  partner  :  si  propter  societatem  eum 
Jiseredem  quis  instituere  desisset ;  aut  legatum  prsetermisissit,  autpatri- 
monium  suum  negligentius  administr asset. 

13'  So  in  our  law,  unless,  under  some  special  agreement,  a  partner  can  claim  no 
compensation  for  his  care  and  trouble  in  the  affairs  of  the  partnership.  Whittle 
v.  McFarlane,  1  Knapp,  312  ;  Burden  v.  Burden,  1  V.  &  B.  170;  Coll.  Partn.  130. 
142.  151 :  Stor.  Partn.  183.  282. 


78  POTHIER    ON    PARTNERSHIP. 

132.  It  remains  to  be  observed,  with  regard  to  what  is  due  from  the 
partnership  to  any  one  of  the  partners,  that  each  of  his  co-partners  is 
bound  to  him  only  according  to  his  share  in  the  partnership,  when  they 
are  all  solvent.     But  if  there  are  any  of  them  insolvent,   the  equality 
which  ought  to  exist  between  partners  does  not  allow  that  the  partner 
who  is  creditor  of  the  partnership  should  bear  alone  the  loss  resulting 
from  their  insolvency,  and  it  ought  to  be  apportioned  between  him  and 
his  solvent  partners:  Proculus  putat  hoc  ad  cseterorum  onus  pert inere, 

quod  ab  aliquibus  servari  non  potest quoniam  societas  quum  con- 

trahitur  tarn  lucri  quam  damni  communio  initur  ;  1.  67.  (Dig.  lib.  xvii. 
tit.  2,  1.  67.)     For  example,  amongst  four  partners,  each  for  a  fourth, 
one  is  creditor  of  the  partnership  for  1200  livres,  another  is  insolvent ; 
each  of  the  two  solvent  partners  owes  in  that  case  the  sum  of  300  livres 
in  respect  to  the  fourth,  for  which  he  is  liable  (de  son  chef}  on  his  own 
account,  and  100  livres  for  his  third  of  the  share  for  which  the  insolvent 
is  bound. 

[  *97  ]  *Third  Article. 

-4s  to  the  other  kinds  of  Obligations  which  arise  from  the   Contract  of 

Partnership. 

133.  It  is,  moreover,  one  of  the  obligations  which  arises  from  the  con- 
tract of  partnership,  that  each  of  the  partners  is  obliged  to  allow  the 
others  the  enjoyment  and  use  of  the  common  property,  to  which  they  are 
entitled  according  to  the  regulations  and  agreements  of  the  partnership ; 
1.  52,  §  13,  ff.  Pro.  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  52,  §  13.) 

For  example,  when  at  Paris,  two  neighbours  enter  into  partnership,  in 
order  that  they  may  have  in  common  an  equipage,  each  of  them  is  obliged 
to  allow  the  enjoyment  of  it  to  the  other  in  his  turn.  If  on  the  day  when 
it  is  my  turn  ray  partner  had  need  of  it  for  business  which  could  not  be 
put  off,  and  I  had  need  of  it  only  for  business  which  could  easily  be  put 
off,  I  ought  to  allow  my  partner  to  use  it,  upon  condition  that  I  should 
use  it  another  day  when  it  was  his  turn.  The  laws  of  fraternity  and  of 
friendship  which  ought  to  exist  among  partners  require  this. 

It  is  also  one  of  the  obligations  which  arise  from  the  contract  of  part- 
nership, that  each  of  the  partners  is  obliged  to  contribute  to  the  repair 
and  preservation  of  the  common  property.  They  may,  nevertheless,  dis- 
charge themselves  therefrom  by  offering  to  abandon  it.  See  what  has 
been  said  supra,  n.  86. 

Lastly,  one  of  the  principal  obligations  which  each  partner  contracts 
by  the  contract  of  partnership,  is  to  submit  to  the  distribution  of  the 
partnership  effects  at  the  termination  and  dissolution  of  the  partnership. 
We  shall  treat  of  that  distribution  infra,  in  the  ninth  chapter. 

Fourth  Article. 
Of  the  Action  Pro  Socio. 

134.  From  the  obligations  which  arise  out  of  the  contract  of  partner- 


OBLIGATIONS    OF    PARTNER  8.  79 

ship  *arises  the  action  pro  socio,  which  each  of  the  partners  can  p  #QR  -. 
maintain  against  his  copartners,  in  order  to  compel  their  fulfil-  *- 
ment. 

This  is  a  personal  action :  it  passes  to  the  heirs  and  other  universal 
successors  of  each  of  the  partners,  who  can  maintain  that  action ;  and  it 
may  be  brought  against  the  heirs  and  other  universal  successors  of  the 
partners,  who  are  bound  by  it. 

We  have  seen  in  the  preceding  articles  who  were  the  objects  of  that 
action. 

135.  That  action,  with  regard  to  its  principal  object,  namely,  the  dis- 
tribution of  the  capital  of  the  partnership,  can  only  be  maintained  from 
the  time  of  the  dissolution  of  the  partnership ;  and  it  is  of  that  the  law 
says  Actione  societas  solvitnr. 

It  can  be  maintained,  with  regard  to  particular  objects,  during  the  time 
that  the  partnership  lasts,  for  instance,  against  such  one  of  the  partners 
who  retains  all  the  profits  of  the  partnership,  to  make  him  share  it  with 
the  others,  *1.  65,  §  15,  ff  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  f  ^  -. 
§  15) ;  and  that  he  may  be  compelled,  for  that  purpose,  to  give  L 
a  short  statement  of  the  accounts,  as  also  to  allow  the  enjoyment  of  the 
common  property,  and  to  contribute  to  necessary  repairs. 

136.  It  is  peculiar  to  the  action  pro  socio,  whether  it  be  commenced 
during  the  partnership  or  after  its  dissolution,  that  each  of  the  parties, 
whether  the  plaintiff  or  one  of  the  defendants,  has  a  right  to  demand  that 
the  cause  and  the  parties  should  be  sent  before  arbitrators,  to  settle  all 
the  disputes  with  regard  to  the  accounts  and  the  distribution  of  the  part- 
nership effects,  and    generally  with  regard  to  all  the  objects  of  that 
action. 

For  this  end,  the  Ordonnance  of  1673,  tit.  4,  art.  9,  provides  that  all 
contracts  of  partnership  should  contain  the  clause  of  submission  to  arbi- 
tration upon  all  disputes  which  may  arise  amongst  partners  on  account 

'*»  The  proceedings  in  Equity  in  partnership  matters  are  in  many  respects  simi- 
lar to  those  under  the  action  pro  socio.  Stor.  Partn.  324,  note. 

In  the  first  place  every  application  to  a  Court  of  Equity  by  one  of  the  partners 
for  an  account  against  his  copartners,  must  be  made  either  on  a  dissolution  hav- 
ing already  taken  place,  or  upon  grounds  sufficient  for  demanding  the  dissolution 
of  the  partnership,  and  consequently  of  the  distribution  of  the  partnership  effects. 
Stor.  Partn.  325 ;  Coll.  Partn.  174.  193. 

But  a  Court  of  Equity  will  interfere  during  the  continuance  of  the  partnership, 
for  particular  purposes,  not  contemplating  a  dissolution  or  distribution  of  the  effects. 
It  will,  for  instance,  decree  the  specific  performance  of  an  agreement  to  enter  into 
a  partnership  for  a  fixed  and  definite  term  (Anon.  2  Ves.  629  ;  Buxton  v.  Lister,  3 
Atk.  385;  England  v.  Curling,  8  Beav.  129) ;  but  it  will  not  where  no  term  has 
been  fixed,  for  such  decree  would  be  useless,  as  either  of  the  parties  might  dissolve 
the  partnership  immediately  afterwards.  Hercy  v.'Birch,  9  Ves.  357.  It  has,  how- 
ever, been  suggested  by  Mr.  Swanston,  in  his  learned  note  to  Crawshay  v.  Maule, 
iSwanst.  513,  that  in  many  cases,  although  the  partnership  could  be  immediate- 
ly dissolved,  the  performance  of  the  agreement,  like  the  execution  of  a  lease,  after 
the  expiration  of  the  term  (Nisbett  v.  Meyer,  1  Swanst.  226),  might  be  important 
as  investing  the  party  with  the  legal  rights  for  which  he  contracted.  But  even 
where  there  has  been  an  agreement  for  a  partnership  for  a  fixed  and  definite  term, 
the  Court  cannot  enforce  it,  when  the  amount  of  capital,  and  the  manner  in  which 
it  is  to  be  provided,  is  undefined,  and  the  mode  of  carrying  on  the  business  is  dis- 
cretionary. Downs  v.  Collins,  6  Hare,  437. 

SEPTEMBER,  1854. — 31 


80  POTHIERONPARTNERSHIP. 

of  the  partnership,  and  that  where  that  clause  has  been  omitted,  it  should 
be  supplied. 

These  arbitrators  must  be  agreed  upon,  and  named  by  the  parties ;  and 
in  default  of  one  naming  them,  the  Judge  will  name  one  for  him.  Or- 
donnance  of  1673,  ibid. 

If,  before  the  arbitrators  have  given  their  award,  one  of  the  arbitrators 
happens  to  die,  the  Ordonnance  provides  that  the  party  who  has  named 
him  shall  name  another  in  his  place,  or  the  Judge,  on  his  refusal.  (Art. 
10.) 

r*inm       "^'  W^n  *he  arbitrators  do  not  agree,  they  can,  without 
-I  *the  consent  of  the  partners,  take  a  third ;  and  if  they  cannot 
agree  in  their  choice,  the  Judge  will  name  one.  (Art.  11.) 

i*'  Every  dispute  between  partners  on  account  of  the  partnership,  shall  be  ad- 
judicated upon  by  arbitrators.  Com.  Cod.  of  France,  51. 

There  shall  be  an  appeal  from  the  judgment  of  the  arbitrators,  or  (au  pourvoien 
cassation)  it  shall  be  reviewed  by  the  Court  of  Cassation,  unless  there  has  been  a 
stipulation  to  the  contrary.  The  appeal  shall  be  heard  before  the  Cour  Royale. 
Ib.  52. 

The  arbitrators  are  nominated  by  an  act  under  private  signature  ;  by  a  notarial 
act;  by  an  extrajudicial  act;  by  a  consent  given  in  a  Court  of  Justice.  Ib.  53. 

The  time  fo  i-the  award  is  fixed  by  the  parties  at  the  time  of  the  nomination  of 
arbitrators ;  and  if  they  do  not  agree  as  to  the  time,  it  shall  be  fixed  by  the  Judges. 
Ib.  54. 

In  case  of  the  refusal  of  one  or  more  of  the  partners  to  nominate  arbitrators,  the 
arbitrators  shall  be  nominated  by  the  Tribunal  of  Commerce.  Ib.  55. 

The  parties  produce  their  documents  and  memoranda,  without  any  legal  formali- 
ties, to  the  arbitrators.  Ib.  56. 

The  partner  who  delays  to  produce  the  documents  and  memoranda,  shall  be 
summoned  to  do  so  within  ten  days.  Ib.  57. 

The  arbitrators,  according  to  the  exigency  of  the  case,  can  extend  the  time  for 
the  production  of  documents.  Ib.  58. 

If  the  time  be  not  extended,  or  if  the  extended  time  have  expired,  the  arbitrators 
adjudicate  upon  the  documents  and  memoranda  produced.  Ib.  59. 

In  cases  of  distribution  (of  the  partnership  effects)  the  arbitrators  nominate  an 
umpire,  if  he  has  not  been  nominated  by  compromise.  If  the  arbitrators  cannot 
agree  in  their  choice,  the  umpire  is  to  be  nominated  by  the  Tribunal  of  Commerce. 
Ib.  60. 

The  adjudication  of  the  arbitrators  must  (motive)  set  forth  its  grounds.  It  must 
be  deposited  with  the  registrar  of  the  Tribunal  of  Commerce.  It  is  rendered  exe- 
cutory without  any  modification,  and  transcribed  in  the  registers,  by  virtue  of  an 
order  of  the  president  of  the  Tribunal,  who  is  bound  to  issue  it,  without  any  re- 
serve, within  three  days  from  the  deposit  with  the  aegistrar.  Ib.  61. 

The  above-mentioned  provisions  are  applicable  to  the  widows,  heirs,  or  assigns 
of  partners.  Ib.  62. 

If  minors  are  interested  in  a  dispute  on  account  of  a  commercial  partnership, 
the  tutor  cannot  renounce  the  right  of  appeal  from  the  award  of  the  arbitrators. 
Ib.  63. 

In  England  a  Court  of  Equity  will  not  decree  specific  performance  of  a  covenant 
to  refer  disputes  to  arbitration  (Price  v.  Williams,  cited  6  Ves.  818  ;  Street  v.  Rig- 
by,  6  Ves.  818 ;  Wilks  v.  Davis,  3  Mer.  507) ;  and  a  plea  of  an  agreement  to  refer 
to  arbitration  would  not  constitute  a  valid  objection  to  a  bill,  either  for  discovery 
or  relief  (Wellington  v.  Mackintosh,  2  Atk.  569  ;  Street  v.  Rigby,  6  Ves.  815,  over- 
ruling Halfhide  v.  Penning,  2  Bro.  C.  C.  336) ;  nor  will  the  Court  substitute  the 
Master  for  the  arbitrators;  "for  this,"  observed  Sir  J.  Leach,  M.  R.,  "  would  be 
to  bind  the  partners  contrary  to  their  agreement."  Agar  v.  Macklew,  2  S.  &  S. 
418. 

It  seems  to  be  doubtful  how  far  an  action  will  lie  at  law  for  breach  of  such  a 
covenant  (Kill  v.  Hollister,  1  Wils.  129),  or,  at  any  rate,  how  other  than  nominal 
damages  can  be  be  obtained  (2  Bos.  &  Pull.  136).  Covenants,  however,  to  refer 


MODES     OF    DISSOLVING    PARTNERSHIP.  81 

The  arbitators  can  give  their  judgment  on  the  documents  and  (memoires) 
written  statements  or  pleadings  of  the  parties  in  their  absence.  (Art. 
12.) 

These  sentences  ought  to  be  (homologuees)  registered  at  the  consulate, 
when  the  partnership  is  a  trading  or  banking  partnership ;  if  not  in  the 
ordinary  jurisdiction.  (Art.  3.) 


»EIGHTH    CHAPTER.  [*101] 

The  different  Modes  in  which  a  Partnership  is  dissolved. 

138.  A  PARTNERSHIP  is  dissolved  in  the  following  ways  : — 1.  The 
expiration  of  the  time  for  which  it  has  been  contracted ;  2.  The  extinc- 
tion of  the  thing  or  the  completion  of  the  business  which  constituted  the 
object  of  the  partnership;  3.  The  death  natural  or  civil  of  one  of  the 
partners  ;  his  insolvency ;  4.  lastly,  The  wish  of  being  no  longer  in  the 
partnership. 

§  I.  As  to  the  Expiration  of  the  Time. 

139.  When  the  partnership  has  been  contracted  for  a*certain  r#-inn-i 
limited  time,  it  terminates  (de  plein  droit}  at  once  by  the  expira-  L 

tion  of  that  time. 

to  arbitration  may  be  made  effectual  by  naming  a  sum  as  liquidated  damages,  to 
be  paid  by  the  party  refusing  to  submit  to  arbitration.  Street  v.  Rigby,  6  Ves. 
818  ;  Astley  v.  Weldon,  2  Bos.  &  Pull.  346. 

138  Partnership  is  dissolved, 

1st.  By  the  expiration  of  the  time  for  which  it  was  contracted. 

2nd.  By  the  extinction  of  the  object,  or  the  completion  of  the  business. 

3rd.  By  the  natural  death  of  one  of  the  partners. 

4th.  By  the  civil  death,  interdiction,  or  embarrassment  of  one  of  them. 

5th.  By  the  desire  expressed  by  one  only,  or  more  of  them,  no  longer  to  continue 
in  partnership.  Civ.  Cod.  of  France,  1865. 

'33  The  prolongation  of  a  partnership  for  a  limited  time  can  only  be  proved  by 
writing  accompanied  by  the  same  formalities  as  the  contract  of  partnership.  Civ. 
Cod.  of  France,  1866. 

As  to  the  formalities  requisite  in  commercial  partnerships,  see  Comm.  Cod.  of 
France,  46.  49. 

According  to  our  law  a  partnership  for  a  limited  time  terminates  at  the  expira- 
tion of  that  time.  It  is  not,  however,  necessary,  as  in  the  French  law,  if  the  part- 
ners are  desirous  of  continuing  the  partnership,  though  it  may  be  advisable,  to  sig- 
nify their  intention  of  prolonging  it  by  any  instrument  or  writing,  executed  with 
the  same  formalities  as  the  original  contract.  The  question,  however  arises,  when 
parties  carry  on  the  partnership  business  after  the  expiration  of  the  time  for  which 
it  was  contracted,  upon  what  terms  is  it  to  be  considered  as  carried  on  ?  It  has 
been  decided  that  a  presumption  arises,  in  the  absence  of  all  acts  and  circumstan- 
ces to  vary  and  control  it,  that  it  is  intended  to  be  a  new  partnership  upon  the  same 
terms  as  the  original  partnership,  but  for  an  indefinite  period,  and  therefore  deter- 
minable  immediately  at  the  will  of  any  of  the  partners,  although  under  the  origi- 
nal partnership  contract,  notice  of  a  dissolution  was  requisite ;  and  the  mere  fact 
of  there  being  unexpired  leases  of  the  premises,  or  contracts  subsisting  with  work- 
men or  others,  is  no  sufficient  ground  for  any  presumption  that  the  new  partner- 
ship is  intended  to  last  either  until  the  expiration  of  the  leases  or  the  completion 
of  the  contracts.  Featherstonhaugh  v.  Fenwick,  17  Yes.  299.  307. 


82  POTHIER    ON    PARTNERSHIP. 

The  parties  may  agree  to  prolong  it  beyond  that  time ;  but  that  pro- 
longation can  only  be  proved  by  a  written  deed,  which  the  Ordonnanee 
of  1673  subjects  to  the  same  formalities  as  the  deed  by  which  the  part- 
nership was  contracted. 

§  II.   The  Extinction  of  the   Thing  which  constitutes  the  Object  of  the 
Partnership  j  and  of  the  Completion  of  the  Business. 

140.  When  a  partnership  has  been  contracted  in  a  certain  thing,  it  is 
evident  that  it  must  end  by  the  extinction  of  such  thing. 

For  example,  if  two  peasants  buy  in  common  an  ass  to  carry  their  goods 
to  market  for  sale,  it  is  clear  that,  if  the  ass  dies,  their  partnership  in  that 
ass  will  be  at  an  end.  Neque  enim  ejus  rei  quse  jam  nulla  sit,  quisquam 
socius  est;  1.  63,  §  10,  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  63,  §  10.) 

141.  When  partners  have  contracted  a  partnership,  not  in  things  them- 
selves, but  in  the  fruits  arising  from  certain  things  belonging  to  one  of 
them,  in  order  that  they  may  receive  them  in  common,  and  make  thereof 
a  common  profit  during  the  continuance   of  the  partnership ;   if  such 
things  perish,  the  partnership  will  be  at  an  end ;  for,  it  being  essential 
to  the  partnership,  that  each  of  the  partners  should  contribute  thereto, 
it  can  no  longer  exist  when  one  of  them  has  no  longer  anything  where- 
with to  contribute  thereto. 

For  example,  when  two  neighbours,  who  have  each  a  cow,  contract  a 

partnership  of  all  the  produce  and  profits  which  should  arise  from  them 

during  a  certain  time ;  if,  before  its  expiration,  the  cow  of  one  of  the 

r*1031  Partners  dies,  tne  partnership  *will  terminate,  because  that  part- 

-I  ner  has  no  longer  anything  to  contribute  thereto. 

When  two  persons  have  contracted  a  partnership  to  sell  in  common 
certain  things  belonging  to  them,  and  they  have  not  put  the  things  them- 
selves into  the  partnership,  but  the  produce  to  arise  from  the  sale ;  if, 
before  the  sale,  the  things  belonging  to  one  of  the  partners  perish,  the 
law  58,  of  which  an  instance  has  been  given,  supra,  n.  54,  decides  that 
the  partnership  is  extinguished.  The  reason  is,  that  such  partner,  hav- 
ing no  longer  anything  to  contribute  thereto,  it  cannot  exist. 
PM041  "^'  Suppose  a  tinker  merchant  has  entered  into  partnership 
J  *with  a  cooper  to  make  and  sell  casks,  to  which  partnership  the 

i«  1865,  2  Civ.  Cod.  of  France,  ante,  138  ;  Stor.  Partn.  406,  407,  408. 

Uf  When  one  of  the  partners  has  promised  to  put  in  common  the  property  in 
anything,  a  loss  occurring  before  the  contribution  thereof  has  been  effectuated, 
operates  as  a  dissolution  of  the  partnership  with  reference  to  all  the  partners. 

The  partnership  is  in  like  manner  dissolved  in  all  cases  by  the  loss  of  the  thing, 
when  the  enjoyment  only  has  been  put  in  common,  and  when  the  property  there- 
of has  continued  in  the  hands  of  the  partner. 

But  the  partnership  is  not  terminated  by  the  loss  of  the  thing  of  which  the 
property  has  already  been  brought  into  the  partnership.  Civ.  Cod.  of  France, 
1867. 

142  The  conclusion  that  Pothier  has  arrived  at,  that  a  party  who  has  contracted 
to  contribute  his  personal  skill  to  a  partnership,  gives  a  just  ground  for  its  disso- 
lution when  he  is  unable,  in  consequence  of  illness,  as  paralysis,  to  fulfil  his  en- 
gagement, seems  to  be  correct,  and  to  be  analogous  in  principle  to  the  relief  which 
a  Court  of  Equity  gives  by  terminating  a  partnership  when  one  of  the  partners  be- 


MODES    OF    DISSOLVING     PARTNERSHIP.  83 

merchant  is  to  bring  the  wood,  and  the  cooper  his  labour  only  in  making 
the  casks.  The  cooper  having  afterwards  become  paralytic,  and  conse- 
quently incapable  of  making  casks,  will  the  partnership  in  that  case  cease, 
and  can  it  be  said  that  the  cooper  has  no  longer  anything  to  contribute 
thereto  ?  No ;  because  by  undertaking  by  the  contract  to  make  casks, 
he  undertook  to  make  them  not  himself  only,  but  either  himself  or  by  his 
workmen  ;  he  can,  therefore,  although  paralytic,  cause  them  to  be  made 
by  his  workmen  ;  and  he  has  it  in  his  power,  consequently,  to  contribute 
to  the  partnership  what  he  has  agreed. 

Suppose,  however,  the  merchant,  who  entered  into  the  partnership 
solely  from  the  confidence  which  he  had  in  the  skill  of  that  workman, 

comes  incurably  insane,  although,  in  the  latter  case,  there  is  an  additional  reason 
why  a  dissolution  should  take  place.  Lord  Kenyon  has  well  observed,  "  When 
there  are  two  partners,  both  of  whom  are  to  contribute  their  skill  and  industry  in 
carrying  on  the  trade,  the  insanity  of  one  of  them,  by  which  he  is  rendered  inca- 
pable to  contribute  that  skill  and  industry  on  his  part,  is  a  good  ground  to  put  an 
end  to  the  partnership,  not  by  the  authority  of  either  of  the  partners,  but  by  ap- 
plication to  a  Court  of  Justice,  and  this  for  the  sake  of  the  partner  who  is  rendered 
incapable,  as  well  as  of  the  other;  for  it  would  be  a  great  hardship  upon  a  person 
so  disordered,  if  his  property  might  be  continued  in  a  business,  which  be  could 
not  control  or  inspect,  and  be  subject  to  the  imprudence  of  another."  Sayer  v. 
Bennet,  Mont.  Part.  vol.  i.  Appendix,  p.  18,  1  Cox,  107.  Upon  the  same  principles 
partly,  when  a  war  breaks  out  between  two  different  states,  it  will  dissolve  a  part- 
nership entered  into  between  the  subjects  of  those  states.  This  has  been  decided 
in  the  United  States,  in  the  case  of  Griswold  v.  Waddington,  16  Johns.  438.  Mr. 
Chancellor  Kent,  in  his  learned  and  able  judgment,  says,  "  The  principle  here  is, 
that  when  one  of  the  parties  becomes  disabled  to  act,  or  when  the  business  of  the 
association  becomes  impracticable,  the  law,  as  well  as  common  reason,  adjudges 
the  partnership  to  be  dissolved.  Pothier,  in  his  Treatise  on  Partnership,  says,  that 
every  partnership  is  dissolved  by  the  extinction  of  the  business  for  which  it  was 
formed.  This  he  illustrates  in  his  usual  manner,  by  a  number  of  easy  and  familiar 
examples.  Thus,  if  a  partnership  be  formed  between  two  or  more  persons,  for 
bringing  together  and  selling  on  joint  account  the  produce  of  their  farms,  or  of 
their  live  stock,  and  the  produce  or  the  stock  of  one  of  them  should  happen  to  fail, 
or  be  destroyed,  the  partnership  ceases  of  course,  for  there  can  be  no  longer  any 
partnership  when  one  has  nothing  to  contribute.  So  if  two  persons  form  a  part- 
nership in  a  particular  business,  and  the  one  engages  to  furnish  capital,  or  the 
raw  materials,  and  the  other  his  skill  and  labour,  and  the  latter  becomes  disabled 
by  palsy,  the  partnership  is  extinguished,  because  the  object  of  the  partnership 
cannot  be  fulfilled.  So,  again,  if  two  or  more  persons  form  a  partnership  to  buy 
and  sell  goods  at  a  particular  place,  the  partnership  is  dissolved  whenever  the  busi- 
ness is  terminated.  (Pothier,  Trait  du  Cont.  de  Soc.  No.  140 — 143.)  Exlincto  sub- 
j'ecto,  tollitur  adjunctum,  is  the  observation  of  Huberus,  when  speaking  on  this  very 
point. 

"  We  can  easily  perceive  with  what  force  their  doctrines  apply  to  this  case,  for  a 
partnership,  formed  between  alien  friends,  must  at  once  be  defeated,  when  they  be- 
come alien  enemies.  They  can  no  more  assist  each  other  than  if  they  were  palsied 
in  their  limbs,  or  bereft  of  their  understandings  by  the  visitation  of  Providence. 
I  have  selected  these  principles  of  partnership  from  the  treatise  of  Pothier  because 
his  reputation  and  great  authority  are  known  in  this  country.  He  has  treated  of 
the  law  of  partnership,  as  he  has  of  other  civil  contracts,  with  a  clearness  of  per- 
ception, a  precision  of  style,  and  a  fulness  of  illustration,  above  all  praise,  beyond 
all  example.  If  it  should  be  asked,  why  is  Pothier  silent,  like  the  English  law, 
concerning  the  effect  of  war  on  a  partnership  between  the  subjects  of  two  belliger- 
ent states?  the  answer  may  be  given,  that  the  possibility  of  such  a  question  never 
could  have  occurred  to  a  French  lawyer,  since  it  has  been  the  law  of  France,  for 
ages,  that  all  intercourse,  communication,  and  commerce  between  the  subjects  of 
France  and  her  enemies,  was  prohibited,  upon  pain  of  death."  Per  Kent,  Chancel- 
lor, in  Griswold  v.  Waddington,  16  Johns.  490. 


84  POTHIERON    PARTNERS  HI  P. 

had  inserted  a  clause  in  the  partnership  contract  that  the  cooper  should 
not  cause  any  casks  to  be  made  by  any  person  except  himself  ?  In  that 
case  it  may  be  said  that  the  partnership  is  extinct,  since  that  which  such 
partner  agreed  to  contribute  thereto  is  extinct ;  being  *not  only 
the  mere  manufacture  of  the  casks,  but  also  his  personal  labour, 
which  he  has  agreed  to  contribute  to  the  partnership,  and  which  he  can 
no  longer  contribute  thereto.  The  merchant,  nevertheless,  would  act 
prudently  in  giving  him  notice  of  a  renunciation  of  the  partnership. 

143.  When  two  or  more  persons  enter  into  partnership  for  a  certain 
business,  that  partnership  will  terminate  when   the  business   has  been 
completed.     For  example,  when  two  merchants  have  contracted  a  part- 
nership to  buy  together  a  certain  parcel  of  goods  to  sell  at  the  fair  of  Grui- 
bray,  it  is  clear  that  such  partnership  will  terminate  when  they  have  sold 
all  there. 

§  III.  As  to  the  Death  of  one  of  the  Partners,  and  Ms  Insolvency. 

144.  The  partnership,  whether  it  be  universal,  particular,  indefinite, 
or  for  a  certain  limited  time,  is  dissolved  at  once  by  the  death  of  one  of 
the  partners. 

This  dissolution  of  the  community,  which  takes  place  by  the  death  of 
one  of  the  partners,  has  two  effects,  f  he  first  is,  that  the  heir  succeeds 
to  the  share  which  the  deceased  had  at  the  time  of  his  death  in  the  part- 
nership property,  and  to  the  share  of  the  debts  of  the  partnership  by 
which  the  deceased  was  bound ;  but  he  does  not  succeed  to  the  future 
rights  of  the  partnership,  save  only  to  such  as  are  necessary  consequences 
of  what  has  been  done  during  the  life  of  the  partner  to  whom  he  succeeds ; 
and  even  with  regard  to  these  he  does  not  become  a  partner  of  the  part- 
ners of  the  deceased,  for  he  does  not  take  his  place,  he  is  only  in  commu- 
nity with  them. 

r*1ftfil  *According  to  these  principles,  if,  after  the  death  of  one  of  the 
-I  partners,  the  survivor  has  made  some  new  advantageous  bargain 
having  relation  to  the  commerce  for  which  the  partnership  was  contracted, 
the  heir  of  the  deceased  partner  can  have  no  claim  to  any  share  of  it  j 
and  if  the  bargain  was  disadvantageous,  he  cannot  be  compelled  to  bear 
any  part  of  the  loss. 

145.  The  Roman  jurisconsults  have  carried  this  principle  so  far,  as  to 

'is  See  Stor.  Partn.  407,  408. 

144  See  ante,  n.  138.     Civ.  Cod.  of  France,  1865,  4.     So,  according  to  our  law,  a 
partnership,  although  it  may  be  entered  into  for  a  definite  period,  will  be  dissolved 
before  its  expiration,  by  the  death  of  one  of  the  partners,  unless  there  be  an  ex- 
press stipulation  to  the  contrary.     Gillespie  v.  Hamilton,  3  Madd.  254  ;  Crawshay 
v.  Maule,  1  Swanst.  495.  509.     One  effect  of  the  dissolution  of  the  partnership  by 
the  death  of  one  of  the  partners  is,  that  his  representatives,  although  entitled  to 
his  share,  do  not  succeed  him  in  the  partnership.     See  Coll.  Partn.  5,  6.  118. 

145  If  it  has  been  stipulated  that  in  case  of  the  death  of  one  of  the  partners  the 
partnership  shall  continue  with  his  heir,  or  only  between  the  surviving  partners, 
such  arrangements  shall  be  followed;  in  the  second  case,  the  heir  of  the  deceased 
has  a  right  only  to  a  distribution  of  the  partnership  effects,  regard  being  had  to  the 
situation  of  such  partnership  at  the  time  of  the  death,  and  he  has  no  right  to  par- 


MODES    OP    DISSOLVING    PARTNERSHIP.  85 

decide,  that  a  person  could  not  even  when  contracting  a  partnership  enter 
into  a  valid  agreement  that  the  heir  of  such  of  the  partners  who  happened 
to  die  during  the  continuance  of  the  partnership  should  become  a  partner 
in  the  place  of  the  deceased :  adeo  morte  socii  solvitur  societas,  ut  nee  ab 
initio  pacisci  possimus,  "  ut  Jiseres  etiam  succedat  societati  ;"  1.  59,  ff. 
Pro.  Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  59.) 

The  reason  of  this  decision  was,  that  the  partnership  being  a  right 
which  is  founded  upon  the  friendship  of  the  parties  for  each  other,  and 
upon  the  reciprocal  confidence  which  each  has  in  the  fidelity  and  good 
qualities  of  the  other,  it  is  contrary  to  its  nature  that  it  could  be  contracted 
with  an  uncertain  and  unknown  person,  and  consequently  with  the  heirs 
of  the  contracting  parties,  who  at  the  time  of  the  contract  were  uncertain, 
the  partner  not  being  able  even  to  engage  himself  to  adopt  a  certain  per- 
son as  his  heir ;  1.  65,  §  9,  ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2,  1.  65, 
§9.) 

This  reason  does  not  appear  to  me  be  very  conclusive,  *and  I  r^-in-j-i 
believe  there  is  more  subtilty  than  solidity  in  it  j  I  think  there-  L 
fore,  that  in  our  law,  although  the  partnership  regularly  terminates  by 
the  death  of  one  of  the  partners,  and  his  heir  does  not  succeed  him  in 
the  future  rights  of  the  partnership,  nevertheless,  a  stipulation  that  he 
shall  succeed  is  binding. 

This  is  the  opinion  of  the  old  practitioner  Masuer,  "  On  Partnerships," 
28,  n.  33.  The  Roman  jurisconsults  themselves  admitted  this  agree- 
ment in  partnerships  for  farming  the  public  revenues.  Why  not  admit 
it  equally  in  ordinary  partnerships  ?  Despeisses  is  of  the  contrary  opin- 
ion. 

146.  The  second  effect  of  the  dissolution  of  community  by  the  death 
of  one  of  the  partners  is,  that  it  dissolves  it  even  between  the  surviving 
partners,  unless,  by  the  contract  of  partnership,  it  has  been  agreed  to  the 
contrary  :  Morte  unius  socii  societas  dis&olvitur,  etsi  'consensu  omnium 
coita  sit,  plures  vero  supersint;  nisi  in  coeunda  societate  aliter  convenerit; 
1.  65,  §  9,  ff.  Diet.  Tit.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  §  9.) 

The  reason  is,  that  the  personal  qualities  of  each  of  the  partners  are 
taken  into  consideration  in  the  contract  of  partnership.  I  ought  not  then 
to  be  obliged,  when  one  of  my  partners  is  dead,  to  remain  in  partnership 
with  the  others,  because  it  may  happen,  that  it  was  only  in  consideration 
of  the  personal  qualities  of  the  one  who  is  dead,  that  I  was  willing  to 
enter  into  it. 

This  principle  admits  of  an  exception  with  regard  to  partnerships  for 

ticipate  in  any  ulterior  claims,  except  so  far  as  they  are  necessary  consequences  of 
what  was  done  before  the  death  of  the  partner  whom  he  succeeds.  Civ.  Cod.  of 
France,  1868. 

Our  law,  according  to  the  doctrine  contended  for  by  Pothier,  and  adopted  by 
the  French  Civil  Code,  in  opposition  to  the  Roman  law,  lays  no  restraint  on  the 
period  of  partnership,  or  the  description  of  persons  whom,  on  the  death  of  the 
original  partners,  the  benefit  of  the  contract  is  reserved.  1  Swanst.  510,  n. ;  Stuart 
v.  Earl  of  Bute,  3  Ves.  212,  11  Ves.  657,  1  Dowe,  73  ;  Balmain  v.  Shore,  9  Ves. 
500  ;  Warner  v.  Cunningham,  3  Dowe,  76  ;  Coll.  Partn.  5,  6  ;  Stor.  Partn.  7. 

146  Our  law  is  the  same.  Crawshay  v.  llaule,  1  Swanst.  495.  509 ;  Gillespie  v. 
Hamilton,  3  Madd.  254  ;  Vulliamyv.  Noble,  3  Mer.  614;  Coll.  Partn.  72,  73;  Stor. 
Partn.  450. 


86  POTHIER    ON    PARTNERSHIP. 

the  farming  of  the  public  revenues,  which  continue  to  subsist  between 
the  survivors  when  one  of  the  partners  happens  to  die :  Haec  ita  in  pri- 
vatis  societatibus  ait.  In  societate  vectigalium  manet  societas  et  post 
mortem  alicujus ;  1.  59.  (Dig.  lib.  xvii.  tit.  2,  1.  59.) 

147.  All  that  has  been  said  of  the  case  of  the  natural  death  of  one  of 
r*10S1  *^e  Par*ners>  applies  to  the  case  of  his  civil  death.     *Dissociamur 

J  renunciatione,  morte,  capitis  diminutione  ;  1.  4,  §  1,  ff.  Diet.  Tit. 
(Dig.  lib.  xvii.  tit.  2,  1.  4,  §  1.) 

148.  The  insolvency  of  one  of  the  partners  also  dissolves  the  partner- 
ship, in  the  same  manner  as  his  death.      Dissociamur  agestate;  Diet. 
Tit.  §  1.     Bonis  a  creditoribus  venditis  unius  socii,  distrahi  societatem 
Labeo  ait ;  1.  65,  §  1,  ff.  Diet.  Tit.     According  to  our  law,  it  suffices 
that  the  insolvency  be  (ouverte)  apparent. 

P109]        *§  IV.  As  to  the  Wish  to  be  no  longer  a  Partner. 

149.  It  is  clear  that  the  partnership  can  be  dissolved  by  the  mutual  con- 
sent of  all  the  partners. 

147  1865,  4.     Civ.  Cod.  of  France,  ante,  138,  note. 

According  to  our  law  a  dissolution  takes  place  when  a  person  has  lost  his  capa- 
city to  act  sui juris,  in  consequence  of  his  being  outlawed  or  convicted  and  attainted 
of  felony  or  treason ;  and  moreover  the  Crown  thereupon  becomes  entitled,  not 
merely  to  the  share  of  the  offending,  but  also  of  the  innocent  partner ;  for  by  an 
absurd  doctrine,  still  existing,  though  practically  obsolete,  it  is  held  that,  as  it  is 
beneath  the  dignity  of  the  Crown  to  become  a  tenant  in  common  or  joint  tenant 
with  a  subject,  it  is  therefore  entitled  to  the  whole  by  virtue  of  its  prerogative. 
See  Watson  Partn.  377,  378  ;  Stor.  Part.  433. 

It  may  be  here  mentioned  that,  according  to  our  law,  the  marriage  of  a  female 
partner  will  of  itself  operate  as  a  dissolution  of  the  partnership,  because,  in  the 
absence  of  any  contract  reserving  the  wife's  personal  property  to  her  separate  use, 
it  will  belong  to  her  husband  absolutely;  and,  moreover,  upon  her  marriage,  ex- 
cept as  regards  property  settled  to  her  separate  use,  she  becomes  incapable  of  bind- 
ing herself  by  any  contracts.  Nerot  v.  Burnard,  4  Russ.  247.  260. 

MS  1865.  Civ.  Cod.  of  France,  ante,  138. 

So,  according  to  our  law,  the  insolvency  or  bankruptcy  of  one  or  more  of  the 
partners  will  of  necessity  operate  as  a  dissolution  of  the  partnership,  for  as  the 
property  of  a  bankrupt  passes  to  his  assignees  he  becomes  unable  to  fulfil  the  part- 
nership contract,  and  with  regard  to  the  assignees  the  solvent  partners  are  not 
obliged  to  admit  them  into,  and  their  duties  will  not  allow  them  to  carry  on,  the 
partnership.  Fox  v.  Hanbury,  Cowp.  445  ;  Exparte  Smith,  5  Ves.  295  ;  Wilson  v. 
Greenwood,  1  Swanst.  471. 482,  483  ;  Crawshay  v.  Collins,  15  Ves.  217.  223.  And 
in  the  event  of  bankruptcy  the  dissolution  which  takes  effect  immediately  upon 
the  adjudication  of  the  bankruptcy  will  have  relation  back  to  the  act  of  bank- 
ruptcy. Barker  v.  Goodair,  11  Ves.  78.  83  ;  Button  v.  Morrison,  17  Ves.  194.  203. 

A  general  assignment  of  all  interest  in  the  partnership  property  by  one  or  more 
of  the  partners  will,  it  seems,  operate  as  a  dissolution  of  the  partnership  :  the  per- 
son to  whom  the  assignment  is  made,  by  that  act,  as  we  have  seen,  merely  has  a 
community  of  property  with,  but  does  not  become  a  partner  of,  the  other  partners. 
If  they  do  nor  consent  to  admit  him  to  the  partnership,  he  cannot  compel  them  to 
do  so  ;  if  they  consent,  then  a  new  partnership  is  formed.  See  Stor.  Partn.  438. 

An  assignment  by  a  partner  to  his  copartner  of  all  his  interest  in  the  concern 
from  which  the  profits  of  the  business  (if  any)  are  to  arise,  operates  as  a  dissolu- 
tion of  the  partnership,  because  the  former  thereby  ceases  to  have  a  right  to  par- 
ticipate in  the  profits ;  and  since  a  partnership,  as  between  parties,  results  from 
the  agreemeet  to  share  in  the  profits,  it  ceases  as  soon  as  such  right  is  determined. 
Per  Lord  Denman,  in  Heath  v.  Sansom,  4  Barn.  &  Ad.  175. 

149  See  note,  151,  post. 


MODES     OF    DISSOLVING     PARTNERSHIP.  87 

Can  one  of  them  dissolve  it  by  his  sole  will,  on  giving  notice  to  his 
partners  that  he  does  not  for  the  future  intend  to  be  in  partnership  ?  Is 
it  necessary,  with  respect  to  this,  to  distinguish  between  partnerships 
which  have  been  contracted  without  any  limitation  of  time,  and  those 
which  have  been  contracted  for  a  certain  limited  time. 

With  regard  to  the  first,  any  one  of  the  parties  can  dissolve  the  part- 
nership by  giving  notice  to  his  partners  that  he  no  longer  intends  to  re- 
main in  the  partnership.  Dissociamur  renunciatione  ;  1.  4,  §  1,  ff.  Pro 
Soc.  (Dig.  lib.  xvii.  tit.  2,  1.  4,  §  1.) 

150.  For  this  effect,  it  is  necessary  that  two  things  should  concur  ; 
1st,  that  the  renunciation  of  the  partnership  should  be  made  in  good  faith  j 
2ndly,  that  it  should  not  be  made  at  an  unseasonable  time.  Debet  esse 
facia  bond  fide,  et  tempestive. 

The  renunciation  is  not  made  in  good  faith,  when  the  partner  renounces 
in  order  to  appropriate  to  himself  alone  the  profit  the  partners  had  pro- 
posed to  make  when  they  entered  into  the  partnership. 

For  example,  if  two  booksellers  enter  into  partnership  to  buy  together 
a  library,  from  which  there  was  a  profit  to  be  made,  and  before  it  has  been 
bought  on  the  partnership  account,  one  of  the  partners,  in  order  to  buy 
it  on  his  own  private  account,  and  alone  to  obtain  the  profits  therefrom, 
gives  notice  to  the  other  that  he  does  not  intend  any  longer  to  be  in 
partnership  with  him ;  that  renunciation  of  the  partnership  is  made  in 
bad  faith,  and  does  not  discharge  him  who  has  made  it  from  his  obliga- 
tion towards  his  partner,  who  can  demand  his  share  of  the  profits. 

But,  if  that  partner  has  renounced  the  partnership  only  *be- 
cause  he  had  a  dislike  to  the  speculation,  to  carry  out  which  they 
had  become  partners,  his  renunciation  is  made  in  good  faith,  and  is  valid, 
the  business  being  yet  untouched.  In  this  case  the  partner  can  claim  no 
damages  against  him. 

This  is  what  Paulus  lays  down : — Si  societatem  ineamus  ad  aliquant 
rem  emendam,  deinde  solus  volueris  earn  emere,  ideoque  renunciaveris 
societati,  ut  solus  emeres  ;  teneberis,  quanti  interest  mea  :  sed  si  ideo  re- 
nunciaveris quia  emptio  tibi  displicebat,  non  teneberis,  quamvis  ego  emero, 
quia  hie  nulla  fraus  est;  1.  65,  §  4.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  §  4.) 

Paulus  gives  another  example : — During  the  continuance  of  a  univer- 
sal partnership,  which  I  have  contracted  with  you,  one  of  my  friends, 
being  on  his  deathbed,  gives  me  notice  that  he  has  instituted  me  his  heir. 
I  go  quickly  to  give  you  notice  that  I  intend  no  longer  to  be  in  partner- 
ship with  you.  That  renunciation  being  made  with  the  view  of  appro- 
priating to  myself  the  succession  of  my  friend,  which  ought  to  have  fallen 
into  our  partnership,  is  void,  as  being  made  in  bad  faith,  and  will  not 
prevent  that  succession,  if  it  be  beneficial,  from  falling  into  the  partner- 
ship. (Diet.  1.  65,  93.) 

In  like  manner  if  two  neighbouring  seigniors  had  contracted  a  partner- 
ship together  to  receive  in  common  the  revenues  of  their  seignories,  and 
one  of  them  having  intelligence  that  a  very  considerable  estate,  held  in  fief 
of  his  seigniory,  was  upon  the  point  of  being  sold,  signifies  to  his  partner 
his  renunciation  of  the  partnership,  in  order  to  appropriate  to  himself  the 
gross  profit  of  the  fifth  to  which  the  sale  would  give  a  right,  that  renun- 


88  POTHIEB    ON     PARTNERSHIP. 

ciation  is  made  in  bad  faith ;  and  it  ought  to  be  declared  void,  and  that 
the  partnership  has  continued,  and  the  profit  accrued  to  it. 
r*im  ^^'  ~^or  t^ie  renunciati°n>  which  one  of  the  partners  has  *made 
J  of  the  partnership,  to  be  valid,  it  is  necessary  in  the  second  place, 
that  it  should  not  be  made  at  an  unseasonable  time ;  that  is  to  say,  at  a 
time  when  things  no  longer  remain  in  statu  quo,  and  when  it  is  the  in- 
terest of  the  partnership  to  wait  for  a  more  favourable  time  to  complete 
the  business  constituting  the  object  of  the  partnership ;  as  if,  having  con- 
tracted a  commercial  partnership  with  you,  I  should  wish  to  dissolve  the 
partnership  at  a  time  when  it  is  the  interest  of  the  partnership  to  reserve 
the  stock  in  trade  which  we  have  bought  in  common,  and  to  wait  for  a 
more  favourable  ,  time  of  sale.  Si  emimus  mancipia,  initd  societate 
delude  renuncies  mihi  eo  tempore,  quo  vendere  mancipia  non  expedit, 
hoc  casu,  quia  deteriorem  causam  meain  fads,  tenerite  pro  socio  judicio. 
Diet.  1.  65,  §  5.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  §  5.) 

Observe  that,  in  order  to  judge  whether  a  renunciation  is  made  at  an 
unseasonable  time,  it  is  necessary  to  consider  the  common  interest  of  the 
partnership,  and  not  the  private  interest  of  him  who  opposes  that  renun- 
ciation, unless  there  be  some  agreement  in  the  contract  of  partnership, 
which  is  opposed  *to  the  renunciation.  Hoc  ita  verum  esse  si 
societatis  non  intersit  dirimi  societatem :  semper  enim  non  id, 
quod  privatim  interest  unius  ex  sociis,  servari  solet,  sed  quod  societati  ex- 
pedit ;  diet.  §  Hsec  ita,  accipienda  sunt,  si  nihil  de  hoc  in  coeunda 
societate  convenerit.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  §  5.) 

161  Dissolution  of  partnership  by  the  desire  of  one  of  the  partners  is  applicable 
only  to  partnerships-of  which  the  duration  is  unlimited,  and  is  effected  by  a  re- 
nunciation, of  which  notice  is  given  to  all  the  partners,  provided  that  such  renun- 
ciation be  bona  fide,  and  not  made  at  an  unreasonable  time.  Civ.  Cod.  of  France, 
1869;  and  see  Ib.  1865,  5,  ante,  n.  138. 

The  renunciation  is  not  bona  fide  when  a  partner  renounces  in  order  to  ap- 
propriate to  himself  alone  a  profit  which  the  partners  had  proposed  to  make  in 
common. 

It  is  made  unseasonably  when  objects  are  no  longer  entire,  and  it  is  the  inte- 
rest of  the  partnership  that  the  dissolution  should  be  deferred.  Ib.  1870. 

According  to  our  law  it  is  clear  that,  although  a  partnership  may  have  been  entered 
into  for  a  limited  period,  it  may  be  dissolved  by  the  consent  of  all,  but  not,  it  seems, 
by  the  mere  will  of  one  of  the  parties  (Peacock  v.  Peacock,  16  Ves.  56;  Crawshay 
v.  Maule,  1  Swanst.  495) ;  where,  however,  no  time  has  been  fixed  for  its  duration, 
it  is  considered  to  be  a  mere  partnership  at  will,  and  may  consequently  be  dissolved 
upon  one  or  more  of  the  partners  giving  notice  to  the  others,  without  reference  to 
the  distinction  of  the  notice  being  seasonable  or  unseasonable.  Master  v.  Kirton, 
3  Ves.  74;  Miles  v.  Thomas,  9  Sim.  606.  609;  Nerot  v.  Burnard,  4  Russ.  247.  260. 
"  I  have  always,"  observed  Lord  Eldon,  "  taken  the  rule  to  be,  that  in  the  case  of 
a  partnership  not  existing  as  to  its  duration  by  a  contract  between  the  parties, 
either  party  has  the  power  of  determining  it  when  he  may  think  proper,  subject  to 
a  qualification  I  shall  mention.  There  is,  it  is  true,  inconvenience  in  this;  but 
what  would  be  more  convenient?  In  the  case  of  a  partnership  expiring  by  effluxion 
of  time,  the  parties  may,  by  previous  arrangement,  provide  against  the  consequences; 
but  where  the  partnership  is  to  endure  so  long  as  both  partners  shall  live,  all  the 
inconvenience  from  a  sudden  determination  occurs  in  that  instance  as  much  as  in 
the  other  case."  Peacock  v.  Peacock,  15  Ves.  56. 

But  Mr.  Swanston,  in  his  note  to  Crawshay  v.  Maule,  1  Swanst.  512,  has  observed 
that  in  one  instance  the  Court  of  Chancery  seems  to  have  assumed  jurisdiction  to 
qualify  the  right  of  renunciation.  See  Chavany  v.  Van  Sommer,  3  Wooddes.  Lect. 
416,  note. 


MODES    OF    DISSOLVING    PAETNBESHIP.  89 

152.  "We  now  pass  to  partnerships  which  are  contracted  *for  r#iio-i 
a  certain  limited  time.  In  these  partnerships  the  partners,  by  L 

152  Dissolution  of  partnership  for  a  term  cannot  be  demanded  by  one  of  the  part- 
ners before  the  period  agreed  on,  except  so  far  as  there  shall  be  just  grounds  there- 
for, as  when  another  partner  fails  in  his  engagements,  or  when  habitual  infirmity 
renders  him  inadequate  to  the  business  of  the  partnership,  or  other  similar  cases, 
of  which  the  lawfulness  and  importance  are  left  to  the  determination  of  the  judge. 
Civ.  Cod.  of  France,  1871. 

According  to  our  law  a  partnership  for  a  limited  time  may,  upon  sufficient  cause 
being  shown,  be  dissolved  by  the  decree  of  a  Court  of  Equity,  although  it  may  not 
be  dissolvable  either  by  mere  operation  of  law,  or  by  the  parties  themselves.  In 
the  first  place,  it  may  be  dissolved  from  its  commencement,  when  it  originated  in 
fraud,  or  misrepresentation,  or  oppression.  Colt  v.  Wollaston,  2  P.  Wms.  154; 
Green  v.  Barrett,  1  Sim.  45.  Another  ground  upon  which  the  Court  will  dissolve 
a  partnership,  in  its  origin  unobjectionable,  is  the  gross  misconduct  of  one  of  the 
partners,  amounting  to  a  want  of  good  faith,  which  is  necessary  to  carry  on  the 
partnership  concern  (Chapman  v.  Beach,  U.  &  W.  594) ;  as,  for  instance,  when  a 
partner  raises  money  for  his  private  use  on  the  credit  of  the  partnership  firm 
(Marshall  v.  Coleman,  2  J.  &  W.  266);  or  big  conduct  amounts  to  an  entire  exclu- 
sion of  his  partner  from  his  interest  in  the  partnership  (Goodman  v.  Whitcomb,  1 
J.  &  W.  593)  ;  or  if  he  receives  moneys  and  does  not  enter  the  receipts  in  the  books, 
or  if  he  does  not  leave  them  open  to  the  inspection  of  his  partners  (Ib.)  ;  or,  if  con- 
trary to  the  opinion  and  wish  of  his  partners,  he  allows  a  person  to  draw  bills 
upon  the  partnership,  and  directs  them  to  be  paid  out  of  the  joint  effects  of  the 
partnership  (Master  v.  Kirton,  3  Ves.  74).  So  when  the  conduct  of  one  of  the 
partners  is  such  as  to  prevent  the  concern  from  being  carried  on  according  to  the 
contract  (Waters  v.  Taylor,  2  V.  &  B.  304) ;  and  it  is  stated  in  7  Jarman's  Convey- 
ancing, p.  83,  upon  the  authority  of  a  MS.  case,  De  Berenger  v.  Hamel,  cor.  Sir  L. 
Shad  well,  V.  C.,  13  Nov.  1829,  that  violent  and  lasting  dissension,  as  when  the 
parties  refuse  to  meet  each  other  upon  matter  of  business — a  state  of  things  which 
precludes  the  possibility  of  the  partnership  from  being  conducted  with  advantage 
— will  be  a  sufficient  ground  for  a  Court  of  Equity  to  decree  a  dissolution.  But 
the  Court  will  not  decree  a  dissolution  for  slight  misconduct,  especially  if  there 
has  been  acquiescence,  on  the  ground  of  mere  ill  temper  on  the  part  of  one  of  the 
partners.  "  Where  parties  differ,"  says  Lord  Eldon,  "  as  they  sometimes  do  when 
they  enter  into  a  different  kind  of  partnership,  they  should  recollect  that  they  enter 
into  it  for  better  and  worse,  and  this  Court  has  no  jurisdiction  to  make  a  separa- 
tion between  them  because  one  is  more  sullen  or  less  good-tempered  than  the  other. 
Another  Court,  in  the  partnership  to  which  I  have  alluded,  cannot,  nor  can  this 
Court,  in  this  kind  of  partnership,  interfere,  unless  there  is  a  cause  of  separation, 
which  in  the  one  case  must  amount  to  downright  cruelty,  and  in  the  other  must 
be  conduct  amounting  to  an  entire  exclusion  of  the  other  partner  from  his  interest 
in  the  partnership.  Goodman  v.  Whitcomb,  1  J.  &  W.  592  ;  and  see  Wray  v. 
Hutchinson,  2  My.  &  K  235. 

Moreover,  the  Court  will  dissolve  a  partnership  in  some  cases  where  no  personal 
blame  attaches  upon  any  of  the  partners,  as,  for  instance,  where  it  has  become  im- 
possible to  carry  it  on  according  to  the  intent  and  meaning  of  the  contract.  Bar- 
ing v.  Dix,  1  Cox,  213.  Thus,  where  the  partnership  was  originally  entered  into 
for  spinning  cotton  under  a  patent  which  totally  failed,  and  was  entirely  given  np, 
Lord  Kenyon  decided,  that  if,  on  a  reference  to  the  Master,  it  was  reported  that 
the  partnership  could  not  be  carried  on,  he  would  direct  the  premises  to  be  sold, 
and  would  dissolve  the  partnership.  And  see  Pearce  v.  Piper,  17  Ves.  1  ;  Buckley 
v.  Cater,  cited  17  Ves.  11.  15,  16,  and  3  V.  &  B.  180,  181  ;  Reeve  v.  Parkins,  2  J.  & 
W.  390.  Another  ground  upon  which  the  Court  will  dissolve  a  partnership,  is  the 
incurable,  and  not  merely  temporary,  insanity  of  one  of  the  partners  (Sayer  v. 
Bennett,  1  Cox,  107;  Kirby  v.  Carr,  3  Y.  &  C.  Excheq.  Ca.  184;  Wrexham  v.  Hud- 
dlestone,  1  Swanst.  504,  n.  ;  Jones  v.  Noy,  2  My.  &  K.  125),  of  which  proof  of  a 
person  having  been  found  a  lunatic,  under  a  commission,  will  be  conclusive  evidence 
(Milne  v.  Bartlett,  3  Jur.  358) ;  but  in  the  absence  of  a  stipulation  for  a  dissolution 
in  such  an  event  at  a  particular  time  (Bagshaw  v.  Parker,  10  Beav.  532),  the  dis- 
solution will  only  take  place  from  the  time  of  the  decree.  Beschv.  Frolich,  1  Ph. 
172. 


90  POTHIER     ON     PARTNERSHIP. 

agreeing  upon  the  time  which  the  partnership  is  to  continue,  are  con- 
sidered to  agree  not  to  dissolve  it  until  after  the  expiration  of  that  time, 
unless  there  happen  some  just  cause  for  dissolving  it  sooner.  Therefore 
one  of  them  cannot,  without  just  cause,  dissolve  the  partnership  before 
the  time,  to  the  prejudice  of  his  partners  :  Qui  societatem  in  tempus  colt, 
earn  ante  tempus  renunciando,  socium  a  se}  non  se  a  socio  liberal ;  1.  65, 
§  6.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  §  6.) 

But  if  the  partner  has  a  just  cause  for  quitting  the  partnership  before 
the  time,  his  renunciation  of  which  he  gives  notice  to  his  partners,  is 
valid,  and  dissolves  the  partnership,  even  when  there  is  an  express  clause 
in  the  contract  of  partnership,  that  the  partners  shall  not  be  able  to 
withdraw  themselves  from  the  partnership  before  the  time.  Pomponius 
r*114.~l  *^ere^ore  observes,  that  such  clause  is  superfluous,  because  even 
J  if  it  had  not  been  expressed,  one  of  the  partners  could  not  before 
the  time  withdraw  himself  from  the  partnership  without  a  just  cause,  that 
clause  cannot  prevent  his  withdrawal :  Quid  tamen  si  hoc  convenit  »  ne 
abeatur,"  an  valeatf  Eleganter  Pomponius  scripsit,  frustra  hoc  conve- 
nire,  nam  etsi  non  convenit,  si  tamen  intempestive  renuncietur  societati,  esse 
pro  socio  actionem  ',  sed  etsi  convenit  ll  ne  intra  cerium  tempus  societate 
abeatur,"  et  ante  tempus  renuncietur  potest  rationem  habere  renunciatio  ; 
1. 24,  ff.  Pro  Soc.  (Dig.  lib.  xvii.  tit.  2, 1. 14.)  Ulpian  gives  many  examples 
of  the  just  causes  a  party  may  have  for  renouncing  before  the  time ;  for  in- 
stance, if  his  partner  didnotexecute  the  conditions  of  the  partnership;  if  he 
has  proof  that  his  partner  refuses  to  allow  him  to  enjoy  in  his  turn  the  thing 
which  they  have  put  in  partnership ;  if  he  has  proof  of  the  bad  conduct 
of  his  partner  in  the  management  of  the  affairs  of  the  partnership  :  Non 
tenebitur  pro  socio,  qui  ideo  renunciavit,  quia  conditio  quondam,  qua  so- 
cietas  erat  co'ita,  ei  non  praestatur  ;  aut  quid  si  ita  injuriosus  et  dam- 
nosus  socius  sit,  utnon  expediat  eum pati  ;  1. 14,  ff.  Diet.  Tit.  (Dig.  lib. 
xvii.  tit.  ii.  1.  14.) 

Moreover,  a  partner  will  have  just  cause  for  renouncing  the  partnership 
before  the  time,  when  in  consequence  of  his  being  obliged  to  be  absent 
during  a  long  time,  on  the  service  of  the  State,  he  can  no  longer  give 
his  attention  to  the  affairs  of  the  partnership,  unless,  indeed  the  affairs  of 
the  partnership  are  such  that  there  is  no  need  of  his  being  present.  L. 
16,  Diet.  Tit. 

This  same  may  be  said  in  case  of  an  inveterate  infirmity  which  has 
seized  upon  one  of  the  partners.  It  might  be  a  just  cause  for  his  renounc- 
ing the  partnership,  if  the  affairs  of  the  partnership  were  such  as  to  re- 
quire his  personal  attention. 

153.  In  order  that  a  renunciation  of  a  partnership  should  operate  as  a 
dissolution,  the  partner,  when  so  renouncing  should  give  notice  to  all  the 
partners.  This  notification,  in  case  it  is  not  admitted  by  the  partners  to 

A  partnership  may  be  dissolved  by  the  award  of  arbitrators,  provided  their 
powers  are  sufficient,  for  two  reasons,  either  because  it  is  the  forum  which  the 
parties  have  themselves  chosen,  and  by  whose  decision  they  must  consequently 
be  bound,  or  because  such  dissolution  may  be  considered  to  have  been  made  with 
the  consent  of  the  parties.  Heath  v.  Sansum,  4  Barn.  &  Ad.  172  ;  Street  v.  Rigby, 
6  Ves.  815  ;  Stor.  Partn.  430. 


EFFECT    OP    DISSOLUTION.  91 

whom  it  has  been  made,  ought  to  be  proved  by  writing,  either  by  a  notice 
*served  by  a  huissier  on  then  personally,  or  at  their  domicile,  or  rj)c, ..  ?-. 
by  a  deed  under  private  signature,  by  which  they  acknowledge  L 
that  such  notice  has  been  given  to  them.  But  that  deed  not  being  evi- 
dence against  third  parties  having  an  interest  in  the  continuance  of  the 
partnership  (see  Pothier  on  «  Obligations,"  n.  750),  it  is  more  prudent 
to  give  such  notice  by  a  huissier. 

154.  When  the  renunciation  of  the  partnership  is  likely  to  be  the  sub- 
ject of  contest,  it  will  be  prudent  for  the  party  who  has  made  it  to  sum- 
mon his  partners  before  the  Court  in  order  to  establish  its  validity. 

For  if,  after  his  renunciation,  the  partners  to  whom  it  has  been  made 
incur  losses,  they  can  object  to  him  the  defects  of  his  renunciation,  and 
if  it  is  found  to  be  made  in  bad  faith,  or  unseasonably,  he  will  be  com- 
pelled to  bear  his  share  of  the  losses ;  while,  on  the  contrary,  if  after  the 
renunciation  they  have  acquired  profits,  the  partner  who  has  made  it  can- 
not claim  a  share,  it  not  being  allowable  for  him  to  insist  on  the  nullity 
of  his  own  renunciation,  and  to  oppose  to  it  its  defects.  Hence  the  juris- 
consults say,  that  the  partner  who  renounces  with  bad  faith,  or  unseason- 
ably disengages  his  partner  from  himself,  and  does  not  disengage  himself 
from  his  partner,  Ante  tempus  renunciando,  sociitm  a  se,  non  se  a  socio 
liberal ;  1.  65,  §  6.  (Dig.  lib.  xvii.  tit.  2,  1.  65,  §  6.) 


*NINTH    CHAPTER. 

The  Effect  of  the  Dissolution  of  Partnerships,  and  the  Distribution  of  the 

Effects. 

FIRST  ARTICLE. 

As  to  the  Effect  of  the  Dissolution  of  Partnership. 
155.  THE  effect  of  the  dissolution  of  partnership  is,  that  thenceforth 

I5*  It  will  be  observed,  that  in  the  case  of  partnerships  for  a  limited  tim.e,  there 
exists  a  difference  in  the  mode  in  which  a  dissolution  of  a  partnership  may  be 
affected  under  the  French  law  and  our  own.  According  to  the  former  the  partner 
may,  by  his  own  act,  primarily  insist  upon  a  dissolution,  which,  however,  is  not 
valid,  unless  it  be  for  a  just  cause,  and  is  affirmed  to  be  so  by  a  court  of  justice; 
whereas  our  law  does  not  allow  the  dissolution  to  be  complete  or  effective  until  a 
court  of  justice  has  itself  decreed  the  dissolution  for  a  just  cause.  In  substance, 
therefore,  the  rule  is  the  same  in  both  laws,  although  it  is  varied  in  its  actual  ap- 
plication. The  rule  of  our  law  is,  to  say  the  least  of  it,  quite  as  convenient  as  that 
of  the  French  law,  if,  indeed,  it  be  not  more  appropriate,  just,  and  equitable. 
Stor.  Partn.  400,  401. 

The  dispositions  of  the  present  title  only  apply  to  commercial  partnerships  in 
the  points  which  contain  nothing  contrary  to  the  laws  and  usages  of  commerce. 
Civ.  Cod.  of  France,  1873. 

155  According  to  our  law  the  effect  of  dissolution,  from  whatever  cause  it  may 
arise,  puts  an  end,  as  between  themselves,  to  the  joint  powers  and  authorities  of 
all  the  partners,  who  can  thenceforth  create  no  new  contracts  or  obligations  bind- 


92  POTHIER     ON     PARTNERSHIP. 

and  for  the  future,  all  contracts,  which  each  of  the  former  partners  may 
enter  into,  will  be  on  his  own  account  only,  unless  they  were  necessary 
consequences  of  the  affairs  of  the  partnership. 

I~*1  1 71  *For  example,  if  two  grocers  of  Orleans  think  proper  to  dis- 
J  solve  a  partnership  in  the  grocery  trade,  all  the  new  purchases 
made  by  either  of  them  of  grocery  stock  in  trade,  after  the  dissolution 
of  the  partnership,  will  be  on  his  sole  account.  If  there  be  profit,  he 
alone  will  have  it ;  if,  on  the  contrary,  there  be  a  loss,  he  alone  must 
bear  it. 

But  if,  before  the  dissolution  of  partnership,  one  of  the  partners  had 
bought  at  Genoa  a  certain  number  of  flasks  of  oil,  in  order  to  re-sell 
them  at  Orleans  for  the  profit  of  the  partnership,  the  bargains  which  he 
may  make  after  the  dissolution  of  the  partnership,  for  their  carriage  to 
Orleans,  being  a  necessary  consequence  of  a  purchase  made  during  and 
on  account  of  the  partnership,  and,  therefore,  a  necessary  consequence 
of  its  affairs,  will  be  at  the  risk  of  all  the  former  partners,  as  being  done 
in  a  partnership  transaction. 

It  is  for  this  reason  that,  although  a  partnership  be  dissolved  by  the 
death  of  one  of  the  partners,  and  his  heir  does  not  become  a  partner  in 
his  stead,  nevertheless  the  heir,  who  cannot  in  truth  commence  new  trans- 
actions on  account  of  the  partnership  of  which  the  deceased  was  a  mem- 
ber, not  only  has  power,  but  it  is  his  duty,  to  complete  those  which  had 
been  commenced  by  the  deceased  on  account  of  the  partnership  :  Haeres 
socii,  quamvis  socius  non  est,  tamen  eaqiise  per  defunctum  inchoata  sunt, 
per  hseredem  explicari  debent ;  1.  40,  ff.  Pro.  Soc.  (Dig-  lib.  xvii.  tit. 
2,  1.  40.) 

156.  Although,  after  the  dissolution  of  the  partnership,  none  of  the 

ing  upon  the  former  partners,  or  those  who  represent  them,  and  this  will  be  the 
effect  of  dissolution,  as  to  third  parties,  either  when  they  have  notice  of  it,  or  even 
in  some  cases,  as  where  dissolution  is  caused  by  death  or  bankruptcy,  there  has 
been  no  notice. 

The  partnership,  however,  in  one  aense,  is  not  determined ;  it  continues  for  the 
purpose  of  winding  up  the  partnership  affairs  ;  whatever,  therefore,  is  consistent  with 
that  duty,  every  partner  has  authority  to  do ;  he  may,  for  instance,  collect  and 
give  receipts  for  the  debts  of  the  partnership,  apply  the  joint  funds  in  payment  of 
the  partnership  debts,  adjust  and  settle  the  unliquidated  debts  of  the  partnership, 
or  receive  any  property  belonging  to  it.  Coll.  Partn.  75,  130;  Stor.  Partn.  458  ; 
Exparte  Williams,  11  Ves.  5;  Peacock  v.  Peacock,  16  Ves.  49.  57;  Wilson  v. 
Greenwood,  1  Swanst.  489;  Crawshay  v.  Maule,  1  Swaust.  506;  Crawshay  v. 
Collins,  15  Ves.  218.  226;  Cruikshank  v.  M'Vicar,  8  Beav.  106.  It  had  even  been 
held  that  an  acknowledgement  or  promise  to  pay  made  by  one  of  the  partners, 
after  dissolution,  will  bind  a  firm  and  take  a  case  out  of  the  statute  as  to  the  other 
partner.  3  Kent.  Com.  49 — 51 ;  Stor.  Partn.  460  ;  Coll.  Partn.  42 1.  But  if  any  per- 
son in  possession  of  the  partnership  property  acts  in  a  manner  inconsistently  with  the 
duty  of  winding  up  the  affairs, — as  by  making  improper  sales,  misappropriating  the 
funds,  excluding  another  partner  from  taking  that  part  in  the  management  of  the  con- 
cern which  he  is  entitled  to  take, — the  Court  will  restrain  him  by  injunction,  and,  if 
necessary,  will  appoint  a  manager  or  receiver  for  that  purpose,  and  direct  inquiries 
;n  what  manner  it  can  be  wound  up  most  beneficially  to  those  interested.  A 
manager  or  receiver  will  not,  however,  be  appointed  except  in  urgent  cases.  See 
Harding  v.  Glover,  18  Ves.  251 ;  Crawshay  v.  Maule,  1  Swaust.  507  ;  Heathcote 
v.  Hulme,  1  J.  &  W.  122.  128;  Wilson  v.  Greenwood,  1  Swanst.  481  ;  Daicie  v. 
John  M'Clel,  206,  13  Price,  446;  De  Tastet  v.  Bordenave,  Jac.  516;  Allen  v.  Kil- 
bre,  4  Madd.  464 ;  Stor.  Partn.  475. 


EFFECT     OF     DISSOLUTION. 

former  partners  can  undertake  any  new  transaction  on  account  of  the 
partnership  which  no  longer  subsists,  nor,  consequently,  bind  his  former 
partners,  by  contracting  either  in  his  own  name  or  theirs ;  nevertheless, 
if  a  partner,  having  good  grounds  for  being  ignorant  of  the  dissolution 
of  the  partnership  (suppose,  for  instance,  the  death  of  a  partner,  which 
effected  the  dissolution,  had  not  yet  come  to  his  knowledge)  has  entered 
into  some  transactions  relative  to  the  partnership  trade,  the  bargains 
which  he  may  have  made  in  the  name  of  the  partnership  of  whose  dis- 
solution he  was  ignorant,  will  bind  his  former  partners  and  their  heirs. 
The  good  faith  with  which  that  partner  acted  renders,  in  this  case,  these 
contracts  binding,  in  the  same  manner  as  the  good  faith  of  a  r*iio-i 
mandatory  renders  valid  whatever  he  has  done  in  execution  of  a  L 
mandate  after  the  death  of  the  mandant,  when  the  mandatory  was  igno- 
rant of  his  death,  which  ^extinguished  the  mandate. 

For  example,  if  a  merchant  of  Orleans  has  contracted  a  partnership 
with  a  merchant  of  Marseilles  to  buy  in  common  a  certain  quantity  of 
flasks  of  oil,  which  they  were  to  convey  to  Orleans,  to  re-sell  in  common ; 
and  the  merchant  of  Marseilles,  after  the  death  of  the  merchant  of 
Orleans  (by  which  the  partnership  was  dissolved),  not  having  yet  intelli- 
gence of  it,  purchased  this  oil  on  account  of  the  partnership,  the  heirs 
of  the  merchant  of  Orleans  will  be  obliged  to  abide  by  it,  as  if  it  had 
been  done  during  the  life  of  the  deceased,  and  during  the  partnership. 
This  is  what  Ulpian  lays  down  in  the  law  65,  §  10,  if.  Pro.  Soc.  (Dig.  lib. 
xvii.  1.  65,  §  10.  Siintegris  omnibus  manentibus,  alter  decesserit,  delude 
tune  sequatur  res,  de  qua  societatem  coierunt  tune,  eadem  distinctione 
utemur,  quain mandate:  ut  si  quidem  ignota  fuerit  mors  alter  LUS,  valeat 
societatis ;  si  nota,  non  valeat. 

157.  For  the  same  reason,  although  the  parties  who,  during 
*the  partnership  had  power  to  manage  for  each  other  the  affairs 
of  the  partnership,  and  to  receive  all  the  debts,  they  have  no  longer 

1"  In  the  case  of  the  payment  of  the  debt  put  by  Pothier,  according  to  our 
law,  it  would,  although  made  with  notice  of  the  dissolution,  be  good,  because  the 
receipt  of  it  would  be  consistent  with  the  duty  of  a  partner  in  winding  up  the 
affairs  of  the  partnership.  As  between  partners  themselves,  no  new  engagement 
not  necessary  for  the  winding  up  of  the  concern  entered  into  by  one  of  them, 
will,  without  the  consent,  authority,  or  subsequent  confirmation  of  the  others, 
be  binding  upon  them.  With  regard  to  the  liability  of  the  firm  to  third  parties 
for  new  engagements  entered  into  by  one  of  them,  much  depends  upon  the  mode 
in  which  the  partnership  is  dissolved  and  the  nature  of  the  engagement, — if  the 
partnership  were  dissolved  by  operation  of  law,  as  by  the  death  of  one  of  the  firm, 
or  by  his  bankruptcy  (Coll.  Partn.  74,  419 ;  Story  on  Partn.  482  ;)  and  it  seems 
also  by  the  marriage  of  a  female  partner,  attainder  of  a  partner  for  felony,  or  by 
war  breaking  out  between  the  countries  of  the  partners  (Stor.  Partn.  483 ;)  no 
new  engagement  by  one  of  the  firm,  without  the  previous  authority  or  subsequent 
confirmation,  will  be  binding  upon  the  firm.  Where,  however,  the  partnership 
is  dissolved  by  the  voluntary  arrangement  of  the  parties,  by  the  retirement  of  a 
partner,  or  by  a  mere  efflux  of  time,  the  firm  will  be  liable  to  third  parties  with 
whom  it  has  been  in  the  habit  of  dealing,  unless  proper  notice  be  given  to  them  ; 
but  not,  it  seems,  to  third  parties  with  whom  they  have  had  no  dealings  until 
after  the  dissolution ;  nor  where  the  partnership,  being  of  a  limited  nature,  had 
terminated  before  the  transaction  took  place.  Coll.  Partn.  370. 

It  is  often  a  difficult  question  to  determine  what  is  sufficient  notice  of  dissolu- 
tion. No  notice,  however,  is  necessary  in  case  of  a  dormant  partner  whose  liabil- 
ity ceases  on  the  dissolution,  except  as  to  persons  who  knew  him  to  be  such. 


94  POTHIER    ON    PARTNERSHIP. 

this  power  after  the  dissolution  of  the  partnership ;  nevertheless,  the 
payment  made  by  a  debtor  of  the  partnership  to  one  of  the  former  part- 
ners of  all  that  he  owed,  although  after  the  dissolution  of  the  partner- 
ship, will  be  valid,  if  he  were  bona  fide  ignorant  of  it. 

For  the  same  reason,  if  traders  or  artisans  who  were  accustomed  to 
furnish  supplies  to  the  partnership,  have  bona  fide,  after  the  dissolution 
of  the  partnership,  of  which  they  were  ignorant,  continued  to  furnish 
these  supplies  to  one  of  the  former  partners,  on  account  of  the  partner- 
ship, all  the  former  partners  or  their  heirs  will  be  bound. 

The  debtors  who  have  paid,  and  the  traders  and  artisans  who  have 
furnished  the  supplies  after  the  dissolution  of  the  partnership,  will  be 
considered  to  have  been  bona  fide  ignorant  when  they  paid  what  they 
owed,  or  furnished  supplies  before  ike  expiration  of  the  time  limited  for 
the  duration  of  the  partnership.  Suppose,  for  instance,  that  they  were 
in  ignorance  of  the  death  of  one  of  the  partners,  which  was  not  yet 
known  in  the  place  where  they  made  the  payment  or  furnished  the  sup- 
r*1901  P^es;  or  *ney  were  ignorant  of  the  renunciation  of  the  *partner- 
-l  ship  made  by  one  of  the  partners  ;  notice  of  that  renunciation  not 
having  been  given  to  them,  and  not  having  been  made  public. 

But  when  the  debtors,  or  the  traders,  or  artisans,  have  furnished  the 
supplies,  after  the  expiration  of  the  time  for  which  the  partnership  had 
been  contracted,  they  cannot  be  heard  to  allege  that  they  were  ignorant 
of  its  dissolution  ;  because  those  who  have  business  with  persons  who 
are  in  partnership,  ought  to  inform  themselves  of  the  terms  of  the  part- 
nership. 

This  is  the  opinion  of  G-omez,  Resolutionum  torn.  ii.  tit.  5,  n.  6. 

158.  It  is  another  effect  of  a  dissolution  of  a  partnership,  that  when 
the  partners  have  put  into  a  universal  partnership  the  enjoyment  of  all 
their  property,  or  in  a  particular  partnership  the  enjoyment  of  certain 
property,  that  enjoyment  ceases  to  be  common  from  the  day  of  the  dis- 
solution of  the  partnership ;  and  all  the  produce  of  the  property  received 
after  the  day  of  the  dissolution  of  the  partnership,  will  entirely  belong 
to  the  partner  who  was  the  owner  of  it. 

This  takes  place,  even  when  such  produce,  at  the  time  of  dissolution 
of  the  partnership,  was  ungathered  and  fit  to  cut;  upon  the  terms  only, 

Evans  v.  Drummond,  4  Esp.  89.  With  regard  to  ostensible  partners,  notice  in 
the  "  London  Gazette"  is  sufficient,  to  such  as  never  dealt  with  the  firm  (Godfrey 
v.  Turnbull,  1  Esp.  3*71) ;  but  to  persons  who  have  so  dealt  express  notice  should 
be  given,  which  is  generally  done  by  a  circular  letter  (Jenkins  v.  Blizard,  1  Stark. 
418)  ;  and  in  a  banking  firm  a  change  in  the  printed  cheque  will  be  sufficient 
(Barfoot  v.  Goodall,  3  Camp.  147.)  A  partner  permitting  his  name  to  be  used  by 
the  firm,  after  a  mere  advertisement  of  the  dissolution  in  the  "  Gazette,"  will  con- 
tinue liable  to  third  parties  (Williams  v.  Keats,  2  Stark.  290) ;  but' not  if  his  name 
is  used  wrongfully  by  the  partners  carrying  on  the  business  of  the  old  firm,  after 
he  had  given  notice  in  the  "  Gazette"  and  to  the  persons  who  had  formerly  dealt 
with  the  old  firm  (Newsome  v.  Coles,  2  Camp.  617) ;  but  in  all  cases  after  as  well 
as  before  dissolution,  the  partnership  will  not  be  bound  by  one  of  the  firm,  unless 
the  engagement  be  legal,  or  such  as  is  warranted  by  the  nature  of  the  business  of 
the  firm. 

It  may  here  be  mentioned  that  the  rights  of  third  parties  to  the  previous  contracts 
and  transactions  with  the  firm,  will  not  be  affected  by  the  dissolution  of  the  part- 
nership. Stor.  Part.  480,  508. 


EFFECT    OP    DISSOLUTION.  95 

that  such  one  of  the  former  partners  who  may  receive  them,  shall  reim- 
burse his  co-partners  at  the  distribution  of  partnership  effects,  according 
to  their  share  in  the  partnership  for  the  expense  of  the  labour  and  sow- 
ing. This  is  what  is  decided  in  the  Custom  of  Paris,  art.  231,  with 
respect  to  the  partnership  between  husband  and  wife ;  and  the  same 
decision  holds  good  with  regard  to  all  other  parnerships,  whether  uni- 
versal or  particular,  there  being  the  same  reason  for  it. 

Our  custom  of  Orleans  (art.  208),  has  a  similar  provision.  That 
article  of  the  custom  of  Paris  being  of  the  number  of  those  added  at  the 
time  of  its  reformation,  which  contain  different  points  that  jurisdiction 
had  decided,  ought  to  be  followed  in  the  customs  which  are  silent  respect- 
ing it, 

Some  customs  have  followed  different  principles.     That  of  Blois  (art. 
185,)  provides,  that  if  at  the  time  of  the  dissolution  of  the  partnership, 
the  lands  were  sown  and  the  vines  *hoed  and  pruned,  the  crops,  r*io-i-i 
although  gathered  after  the  dissolution  of  the   partnership,  are  L 
common. 

159.  In  this  diversity  of  customs,  which  is  to  be  followed  ?  If  the 
former  partners,  when  contracting  the  partnership,  have  declared  by 
which  custom  they  intended  it  should  be  governed,  that  custom  should 
be  followed.  If  they  are  silent  upon  the  subject,  they  are  considered 
to  have  intended  it  to  be  governed  according  to  the  law  of  the  place  where 
they  have  entered  into  the  contract,  and  where  they  have  their  domicile, 
according  to  that  rule  of  law  :  In  contractions  tacite  veniunt  ea  quee  sunt 
moris  et  consuetudinis  in  regtone  in  qud  contrahuntur. 

It  is  to  be  presumed  and  understood  in  this  rule  of  law,  that  the  place 
where  the  parties  contract  is  the  place  of  their  domicile.  But  if  the  in- 
strument has  been  executed  in  the  place  where  they  happened  to  be 
temporally,  other  than  that  of  their  domicil,  they  ought  to  be  considered 
to  have  intended  to  contract  according  to  the  law  of  their  domicil,  rather 
than  according  to  that  of  the  place  where  the  instrument  was  executed, 
and  where  they  happened  to  be  only  temporarily. 

May  it  not  be  said,  that  the  law  of  the  place  where  the  estates  which 
have  been  put  into  partnership  are  situated,  ought  to  be  followed  ?  No  j 
for  the  laws,  which  govern  agreements  and  personal  engagements  which 
arise  from  them,  are  personal  rules,  which  exercise  their  authority  prin- 
cipally and  directly,  not  over  things,  but  over  persons  which  are  subject 
to  them,  by  reason  of  the  domicile  which  these  persons  have  in  their 
territory. 

What  then  must  be  the  decision,  if  the  parties  were  domiciled  each 
under  different  customs  ?  When  it  is  a  partnership  between  persons 
about  to  be  married,  it  must  be  presumed  that  they  wish  to  contract  ac- 
cording to  the  law  of  the  domicile  of  the  intended  husband,  which  will 
also  become  that  of  the  intended  wife. 

Suppose  the  partnership  has  been  contracted  between  other  persons 
besides  those  about  to  be  married,  and  who  would,  after  the  contract  of 
partnership,  continue  to  reside  separately  in  different  domiciles? 

I  think  that  the  law  of  the  domicile  of  him  at  whose  residence 
*the  instrument  has  been  executed  should  be  followed,  there 

SEPTEMBER,  1854. — 32 


96  POTHIEE    ON    PARTNERSHIP. 

being  more  reason  for  presuming  that  the  other  party  intended  to  submit 
himself  to  the  law  of  the  person  whom  he  has  gone  to  find  at  home,  than 
that  there  is  reason  for  believing  that  he  who  remained  at  home  intended 
to  submit  himself  to  the  law  of  the  domicile  of  the  other. 

But,  suppose  the  contract  has  been  executed  in  the  place  which  was 
the  domicile  of  neither  ?  The  law  of  the  domicile  of  the  partner  who 
has  the  greatest  share  in  the  partnership  may  be  preferred,  and  if  they 
have  equal  shares,  there  being  in  that  case  no  reason  for  preferring  the 
law  of  the  domicile  of  the  one  to  that  of  the  other,  I  think  that  then 
the  decision  must  be  in  favour  of  the  law  most  conformable  to  Common 
Law. 

160.  With  regard  to  the  things  which  the  partners  have  put  into  the 
partnership,  not  only  for  enjoyment,  but  for  the  purpose  of  being  com- 
mon between  them ;  as  the  dissolution  of  the  partnership  does  not  pre- 
vent such  things,  as  well  as  those  acquired  during  the  partnership,  from 
continuing  common  among  the  former  partners,  until  a  distribution  or 
division  takes  place,  whatever  may  arise  from  them,  until  the  distribution, 
although  after  the  partnership  has  been  dissolved,  will  be  common  be- 
tween them. 

In  like  manner  the  dissolution  of  the  partnership  does  not  put  an  end 
to  the  debts  of  each  of  the  former  partners  to  the  partnership,  and  those 
of  the  partnership  to  each  of  the  former  partners  or  to  their  obligation 
of  respectively  accounting  for  them  on  the  winding  up  of  the  partnership. 


SECOND   ARTICLE. 

As  to  the  Distribution  or  Division  of  the  Partnership  Effects. 

161.  In  order  to  dissolve  the  community  which  subsists,  after  the  dis- 
solution of  the  partnership  between  the  former  partners,  and  to  discharge 
the  respective  debts  for  which  they  may  be  liable  to  each  other,  each  of 
the  former  partners,  or  his  heir,  has  a  right  to  demand  of  his  partners  or 
their  heirs  to  proceed  to  an  account  and  distribution  of  the  partnership 
effects. 

r*ioq-i       *To  effect  this  they  can  each  maintain  the  action  pro  socio,  or 
J  the  action  communi  dividundo,ta.t  their  option. 

I  have  already  spoken  in  general  of  distribution  in  my  Treatise  on  the 
Contract  of  Sale,  Part  vii.  Art.  6 ;  and  I  have  said  there,  that,  according 
to  our  jurisprudence,  distribution  was  nothing  more  than  an  act  deter- 
mining the  undeterminate  share  of  each  of  the  joint  owners  of  the  com- 
mon stock,  by  awarding  to  him  those  things  only  which  are  assigned  for 
his  lot. 

We  shall  examine  in  this  article ;  1st,  when,  by  whom,  and  from 
whom,  the  distribution  ought  to  be  demanded  ;  2ndly,  how  parties 
should  proceed;  Srdly,  what  are  the  different  obligations  arising  from  it. 


EFFECT    OF    DISSOLUTION.  97 


§  I.  By  whom,  against  whom,  and  when,  the  Demand  for  Distribution 

can  be  made. 

162.  Each  of  the  former  partners  can  alone  demand  a  distribution 
against  the  others,  and  compel  them  to  make  a  distribution  of  the  effects 
which  remain  in  common  after  the  dissolution  of  the  partnership. 

Their  heirs  and  other  successors  can  in  like  manner  make  that  demand; 
even  a  successor  to  whom  one  of  the  former  partners  may  have  sold  or 
given  his  share. 

163.  He  who  demands  a  distribution  ought  to  seek  it  against  all  his 
partners  or  their  heirs.     If  he  has  only  sought  it  against  one,  he  against 
whom  it  is  sought  will  have  grounds  for  demanding  by  exception  that 
the  plaintiff  is  bound  to  make  all  the  others  parties  to  the  cause,  it  being 
proper  that  the  division  should  take  place  amongst  all  those  who  have  a 
share  in  the  community. 

*The  other  partners  who  have  not  been  summoned  can  inter-  r#1~ ,-, 
vene  without  waiting  for  a  summons. 

164.  When  there  are  immoveables  amongst  the  property  of  which  the 
community  is  composed,  minors  cannot  demand  a  distribution  thereof, 
but  persons  of  full  age  can  do  so,  even  against  the  minors,  and  with  them 
obtain  an  order  for  that  purpose. 

The  reason  is,  that  the  distribution  of  immoveables  on  the  part  of  the 
person  who  demands  it,  is  a  voluntary  disposition  which  he  makes  of  his 
immoveable  rights ;  because  it  is  at  his  option  not  to  seek  for  the  distri- 
bution, but  minors  are  not  permitted  to  dispose  of  their  immoveable  goods 
during  their  minority. 

Distribution,  however,  with  regard  to  him  from  whom  it  is  demanded, 
is  a  compulsory  disposition,  since  he  could  not  prevent  it.  But  the  laws, 
which  forbid  the  alienation  and  disposition  by  minors  of  their  immove- 
ables, do  not  comprehend  compulsory  dispositions  and  alienations. 

The  person  of  full  age  who  has  a  joint  interest  with  a  minor,  ought 
not  to  suffer  on  account  of  his  minority.  Ad  divisionis  causam  provo- 
cante  tantummodo  maj'ore  socio,  ejus  alienationem  et  sine  decreto  fieri 
jam  pridem  obtinuit ;  1.  17.  Cod.  de  Freed,  min.  (Cod,  lib.  v.  tit.  71. 
1.  17.) 

165.  Ordinarily  the  demand  for  a  distribution  can  be  made  immedi- 
ately after  the  dissolution  of  the  partnership.     Nevertheless,  if  the  par- 
ties have  agreed  to  delay  the  distribution  during  a  certain  period,  and  to 
postpone  it  until  a  time  which  they  believe  will  be  more  convenient  to 
dispose  of  their  common  property,  such  agreement  ought  to  be  executed, 
although  an  indefinite  agreement  not  to  make  a  distribution  would  not 

162  So,  according  to  our  law,  on  a  dissolution,  each  of  the  former  partners,  or  the 
representatives  of  a  deceased  partner,  may,  in  case  of  improper  delay,  danger  of 
loss,  or  neglect  of  duty,  proceed  in  Equity  by  a  bill  strongly  resembling  the  actiou 
pro  socio,  to  compel  an  account  and  a  distribution  of  the  partnership  effects,  and, 
if  necessary,  the  other  or  surviving  partners  will  be  restrained  by  injunction  from 
disposing  of  the  joint  property,  and  from  collecting  the  outstanding  debts. 

103  So,  in  our  law,  all  the  partners,  and  the  representatives  of  deceased  partners, 
must  be  made  parties  to  the  cause. 


98  POTHIER    ON    PARTNERSHIP. 

have  been  binding.  Si  conveniat  "  ne  omnino  divisiofiat"  liujusmodi 
pactum  nullas  vires  habere,  manifestissimum,  est.  Sinautem  "intra  cer- 
tum  tempus"  quod  etiam  ipsius  rei  qualitati  prodest,  valet ;  1.  14,  &  2, 
ff.  Comm.  Divid.  (Dig.  lib.  x.  tit.  3,  1.  14,  §  2.) 

This  agreement  does  not  prevent  a  former  partner  from  selling  in  the 
meantime,  to  a  third  party,  his  undivided  share  in  the  community ;  but 
it  can  be  set  up  against  the  purchaser  (who  ought  not  to  have  any  greater 
rignt  tnan  tne  *partner),  if  he  seek  for  a  distribution  before  the 
time.  Emptor  quoque  communi  dividundo  agendo,  eddem  ex- 
ceptione  summovebitur  qua  auctor  ejus  summoveretur :  diet.  1.  §  13. 
(Dig.  lib.  x.  tit.  3,  1.  14,  §  3.) 

166.  As  long  as  partners  or  their  heirs  possess  in  common  the  com- 
mon property,  although  they  have  possessed  it  more  than  a  hundred 
years,  no  prescription  can  be  set  up  in  order  to  exclude  the  action  for 
distribution.     But  a  prescription  of  thirty  years  may  take  place,  if  they 
have  had  a  separate  possession  for  more  than  thirty  years ;  for  it  will  be 
presumed  that  there  has  been  a  distribution  then,  of  which  the  act  has 
been  lost. 

§  II.  How  Parties  should  proceed  to  a  Distribution. 

167.  Before  proceeding  to  distribution  the  account  of  what  each  of  the 
r*19fn  Par^es  owes  to  the  community  to  be  distributed,  *and  of  what 

-I  is  due  to  each  by  the  said  community,  ought  to  be  entered  into. 
There  should  be  comprehended  in  this  account  not  only  what  is  owing  to 

157  In  taking  the  account  between  the  partners  upon  any  dissolution,  each  be- 
comes chargeable  with  all  the  debts  and  claims  which  he  owes,  or  is  accountable 
for,  to  the  partnership,  with  all  interest  accruing  upon  the  same  debts  and  claims, 
and  with  all  profits  which  he  has  made  out  of  the  partnership  effects  during  the 
partnership,  or  since  the  dissolution,  either  rightfully  or  by  misapplication  thereof. 
Stor.  Partn.  497. 

The  creditors  hare,  during  the  continuance  and  solvency  of  the  partnership,  no 
lien  upon  its  effects.  They  can  only  proceed  at  law,  either  against  the  firm,  if  their 
debts  be  joint,  or  against  one  or  more  of  the  creditors  if  they  be  separate,  and,  upon 
obtaining  judgment,  levy  execution,  either  upon  the  partnership  effects,  or  the 
share  of  the  partner,  as  the  case  may  be.  Stor.  Partn.  509.  Hence,  on  a  dissolu- 
tion, it  may  be  agreed  by  the  partners  that  the  partnership  property  shall  thence- 
forth belong  to  one  of  them,  and  if  such  agreement  be  bona  fide,  and  for  valuable 
consideration,  the  property  will  not  be  liable  to  the  joint  creditors  (Exparte  Ruffin, 
6  Ves.  127;  Exparte  Fell,  10  Ves.  347;  Exparte  Williams,  11  Ves.  3;  Exparte 
Rowlandson,  1  Rose,  416;  Campbell  v.  Mullett,  2  Swanst.  575);  and  a  similar 
stipulation  in  the  deed  of  partnership,  to  take  effect  on  the  dissolution  of  the  part- 
nership, by  death  or  other  personal  incapacity,  but  not  in  cases  of  forfeiture  for 
felony  or  by  bankruptcy,  will  be  valid.  Stor.  Partn.  509. 

But  inasmuch  as  on  a  dissolution  each  partner  has  a  right  to  have  his  share 
ascertained,  and  has  a  lien  on  the  partnership  effects  for  it,  and  as  it  cannot  be 
ascertained  until  the  creditors  of  the  firm  are  satisfied,  the  creditors  by  this  means, 
and  through  the  medium  of  the  equities  of  the  partners,  may  obtain  payment  of 
their  debts  in  equity. 

The  joint  creditors  have  a  primary  claim  upon  the  joint  property  of  the  partner- 
ship, whether  it  be  administered  in  equity  or  bankruptcy,  the  separate  creditors 
of  each  partner  being  only  entitled  to  payment  out  of  the  surplus  coming  to  the 
share  of  the  partner  indebted  to  them  ;  oq  the  other  hand,  the  joint  creditors  will 
not  be  entitled  to  payment  out  of  the  separate  estate  until  the  separate  creditors 
have  been  satisfied.  See  Coll.  Partn.  623  ;  Stor.  Partn.  512. 


EFFECT    OP    DISSOLUTION.  99 

the  partnership  at  the  time  of  its  dissolution  but  what  has  become  due  to 
the  community  since  the  dissolution,  either  on  account  of  what  each  has 
drawn  from  the  common  funds,  or  on  account  of  the  loss  which  he  may, 
by  his  default,  have  occasioned  to  the  effects  of  the  community. 

In  like  manner,  there  must  be  comprehended  in  the  account  what  is 
due  by  the  community  to  each  of  the  parties,  not  only  what  was  due  to 
him  by  the  partnership  at  the  time  of  its  dissolution,  but  what  may  since 
have  become  due  to  him  from  the  community,  on  account  of  disburse- 
ments which  he  may  have  made  without  any  profit  for  the  common 
affairs,  or  for  the  property  of  the  community  after  the  dissolution  of  the 
partnership. 

The  amount  of  the  sums  for  which  each  of  the  parties  is  debtor  to  the 
community  ought  to  be  set  off  against  those  for  which  he  is  creditor,  and 
what  remains,  after  such  set-off,  should  be  put  to  the  debit  or  credit 
of  the  community.  Observe  that  in  the  account  of  what  has  been 
received  or  expended  for  the  partnership,  the  book  of  the  partnership 
kept  by  one  of  the  partners  is  proof  between  them.  (Lauterback.) 

168.  After  that  account  has  been  taken,  the  common  stock  is  set  forth 
that  is  to  say,  a  detailed  account  of  all  the  different  things  of  which  the 
community  is  composed ;  and  there  is  comprehended  in  this  stock,  amongst 
the  (dettes  actives)  debts  due  to  the  community,  the  sums  which  each  of 
the  parties  (after  the  set-off  has  been  made)  owe  to  the  community;  and 
on  the  distribution  of  the  community  their  own  debt  is  to  be  deducted 
from  their  share. 

An  account  also  of  the  (dettes  passives)  debts  due  from  the  community 
is  prepared,  and  there  is  comprehended  in  it  the  *sums  which  r^-i^-i 
(after  a  set-off  has  been  made)  are  owing  to  each  of  the  parties  by  L 
the  community. 

These  sums  ought  to  be  taken  by  them  before  the  partition  of  the  com- 
munity. 

Each  of  the  things  of  which  the  community  is  composed,  whether 
moveables  or  estates,  is  put  down  in  that  stock  at  a  certain  valuation. 

The  parties  may  themselves  make  this  valuation  when  they  are  in  a 
position  to  do  so — as  when  they  are  all  agreed,  and  are  all  of  age :  if 
not,  the  valuation  will  be  made  by  one  or  more  valuers  whom  they  agree 
upon;  and  if  they  cannot  agree,  the  judge  appoints  a  person  for  that 
office. 

169.  After  the  stock  has  been  taken,  the  distribution  may  be  proceeded 
with,  commencing  with  that  of  the  moveables. 

Each  of  the  parties  has  a  right  to  demand  that  his  share  in  the  effects 
to  be  distributed  shall  be  delivered  to  him  in  kind,  and  for  such  purpose, 
that  they  shall  be  made  into  parcels  to  be  drawn  by  lots,  and  the  other 
partners  cannot  oblige  him  to  submit  to  a  sale,  unless  there  were  debts 
of  the  partnership  which  could  only  be  discharged  by  the  produce  of  the 
sale  of  the  moveables ;  in  which  case,  so  much  of  the  moveables  ought  to 
be  sold,  as  would  be  sufficient  to  discharge  them}  beginning  with  the 
perishable  moveables. 

Each  of  the  parties  can  demand  a  sale  of  the  moveables,  not  only  up 
to  the  amount  necessary  for  paying  what  the  community  owes  to  strangers, 


100  POTHIER    ON    PARTNERSHIP. 

but  also  for  paying  the  sum  which  is  due  to  him  by  the  community,  and 
which  he  has  a  right  to  receive  before  the  distribution. 

If  his  copartners  were  creditors  of  the  community  as  well  as  himself, 
they  will  set  off  their  credits  together,  and  he  will  only  have  to  receive 
first  the  sum  for  which  he  was  creditor  to  a  greater  amount  than  they 
are. 

170.  After  the  distribution  of  the  moveables,  they  proceed  next  to  the 
immoveables,  if  there  are  any;  and  in  like  manner  lots  are  made  of  the 
property  which  is  to  be  divided. 

It  is  seldom  that  these  lots  can  be  equal,  and  precisely  of  the  amount 
coming  to  each  of  the  joint  owners  from  the  stock.  In  order  to  remedy 
this,  and  to  effect  equality  among  the  joint  owners,  the  lot  which  is  too 
I-*IOQ-I  great  is  charged  in  *favour  of  that  which  is  too  small.  For  ex- 
J  ample,  if  the  mass  of  the  property  which  is  to  be  distributed 
between  two  joint  owners  is  worth  20,000  livres,  and  the  share  that  each 
ought  to  have  in  it  is  10,000,  if  one  of  the  two  lots  is  of  the  value  of 
12,000  livres,  and  the  other  8000,  the  lot  worth  12,000  livres  will  be 
charged  with  2000  livres  in  favour  of  that  worth  the  8000  livres.  By 
this  method  the  lots  will  be  equal ;  that  of  the  12,000  livres  being  re- 
duced to  10,000  livres,  by  means  of  the  charge  of  2000  livres,  and  that 
of  the  8000  livres  being  augmented  to  10,000  livres  by  means  of  the 
charge  of  2000  livres,  which  it  will  receive  from  the  other. 

When  one  of  the  former  partners  finds  in  specie  in  the  mass  of  the 
property  of  the  community  the  things  which  he  has  put  into  it,  whether 
moveables  or  estates,  he  has  no  ground  for  having  them  in  preference  to 
his  partners,  by  allowing  them  to  take  other  effects  of  equal  value  ;  he 
has  no  more  right  to  them  than  they  have. 

171.  Sometimes  the  parties  licitate,  or  put  up  to  auction  between 
themselves  the  things  which  are  to  be  distributed,  especially  the  estates, 
instead  of  distributing  them ;  and  this  licitation  will  take  the  place  of 
the  distribution. 

To  licitate  a  thing,  is  to  adjudge  it  to  the  one  who  offers  most,  and  is 
last  bidder,  in  order  that  it  may  belong  to  him  entirely,  upon  condition 
of  his  paying  the  price  for  which  it  was  adjudged  to  him ;  and  the  price 
will  be  distributed  amongst  the  joint  owners,  according  to  the  share  which 
each  of  them  had  in  the  thing.  See  what  I  have  said  about  licitation  in 
my  "  Treatise  on  the  Contract  of  Sale,"  part  7. 

Each  of  the  parties  can  oblige  the  others  to  submit  to  licitation  when 
the  distribution  cannot  take  place  otherwise,  and  there  is  not  a  sufficiency 
of  estate  to  make  as  many  lots  as  there  are  joint  owners  :  above  all, 
when  there  is  only  one  single  estate  which  cannot  be  divided  without  de- 
preciating its  value. 

Infants,  even,  can  be  compelled  to  submit  to  licitation,  but  it  is  neces- 
sary to  show  first  thas  the  distribution  could  not  be  made  otherwise. 

When  it  can  be  made  otherwise,  and  there  is  a  sufficiency  of  estates  to 
r#19Q~l  ma^e  as  many  l°ts  as  there  are  joint  owners,  *none  of  the  parties, 
-"  whether  they  are  of  full  age  or  minors,  can  be  compelled,  con- 
trary to  his  will,  to  submit  to  licitation. 

When  there  are  some  minors  among  the  licitant  parties  the  licitation 


EFFECT    OF    DISSOLUTION.  101 

can  only  take  place  in  the  presence   of  a  judge,  and   the  biddings  of 
strangers  ought  to  be  admitted. 

When  all  the  parties  are  of  full  age  the  bidding  of  strangers  are  not 
admitted  except  on  the  demand  of  one  of  the  parties ;  and  it  is  not 
necessary  to  go  before  the  judge  in  order  to  make  the  licitation. 

172.  With  respect  to  the  debts  due  to  the  community,  although  they 
are  divided  by  mere   operation  of  law   (nomina  ipso  jure  dividuntur}, 
and  in  consequence  have  no  need  of  a  distribution ;  1.  6,  Cod.  Fam. 
Ere ;  1.  4,  ff.  Diet.  Tit. ;  nevertheless,  as  it  would  be  too  embarrassing 
a  procedure  for  each  of  the  former  partners  to  obtain  payment  of  his 
share  from  each  of  all  the  debtors   of  the  community,  it  is  customary 
to  divide  into  lots  the  good  debts,  as  well  as  the  other  effects  of  the  com- 
munity. 

By  the  Roman  law,  it  was  necessary,  that  he  to  whose  lot  they  had 
fallen  should  obtain  an  assignment  from  the  others  of  their  rights 
of  actions  for  the  shares  which  they  each  had  in  them,  and  should  sue 
for  them  as  well  in  his  own  name  as  in  theirs;  1.  2,  §  5,  ff.  Fam.  Ere. 
In  our  law  such  an  assignment  is  not  necessary ;  and  he  to  whose  lot 
the  debts  due  to  the  community  have  fallen  may,  by  serving  the  debtors 
with  an  extract  of  his  allottment  in  the  distribution,  require  payment  in 
his  own  name  alone. 

With  regard  to  the  bad  or  doubtful  debts,  they  are  not  divided  into 
lots ;  but  one  of  the  parties  is  charged  with  the  recovery  of  them,  or 
even  sometimes  a  stranger,  who  must  account  for  whatever  he  may 
receive,  to  each  of  the  parties  according  to  his  share  therein. 

173.  It  is  clear  that  the  debts  due  from  the  comunity  do  *not  r^-ion-i 
come  within  the  distribution.     Nevertheless,  where  the  price  L 

173  The  rules  relating  to  the  distribution  of  successions,  the  form  of  such  dis- 
tribution, and  the  obligations  which  result  therefrom  between  coheirs,  are  appli- 
cable to  distributions  between  partners.  Civ.  Cod  of  France,  1872. 

The  rules  relating  to  the  distribution  of  successions  in  the  Code  (see  Arts.  815, 
883,)  are  in  effect  the  same  as  those  laid  down  in  the  text  by  Pothier  for  the  dis- 
tribution of  the  partnership  effects. 

Our  Courts  of  Equity  differ  in  a  striking  manner  from  the  French  in  the  mode 
of  proceeding  to  a  distribution  of  the  partnership  effects,  which  seems  to  be 
exceedingly  complicated  and  liable  to  many  objections,  for  the  usual  rule  is,  that 
the  whole  of  the  partnership  property,  whether  real  or  personal,  should  be  sold, 
so  that  after  satisfying  the  claims  of  all  the  creditors  of  the  firm,  each  partner 
may,  without  any  further  trouble,  receive  the  share  to  which,  on  taking  the 
account  between  them,  he  may  be  'entitled.  Stor.  Partn.  501  ;  Coll.  Partn.  206, 
211.  In  Scotland  the  mode  of  distribution  which,  like  that  of  France,  was  bor- 
rowed from  the  Roman  law,  has  been  abandoned,  and  the  more  simple  and  prac- 
tical mode  of  a  sale,  as  in  our  law,  has  been  adopted.  2  Bell.  Comm.  p.  632,  633, 
645,  5th  edit.  « 

Upon  the  dissolution  of  a  partnership  the  question  arises  between  the  real  and 
personal  representatives  of  the  deceased  partner,  whether  real  estate  belonging 
to  the  partnership  or  its  proceeds  when  sold  by  the  order  of  the  Court,  are  to  be 
considered  as  real  or  personal  estate.  The  result  of  the  authorities  appears  to 
be  this  :  that,  in  the  absence  of  any  agreement,  and  except  for  the  purpose  of  the 
payment  of  probate  duty,  real  estate  purchased  with  partnership  capital  for  the 
purposes  of  partnership  in  trade,  will  in  Equity  be  converted  into  personalty; 
but,  where  real  estate  belongs  to  the  partners,  or  has  been  acquired  by  them  out 
of  their  private  moneys,  or  by  gift,  although  it  is  used  for  partnership  purposes, 
in  trade,  or  if,  although  it  is  used  for  partnership  purposes  in  trade,  or  if  although 


102  POTHIEB    ON    PARTNERSHIP. 

arising  from  the  sale  of  moveables  has  not  been  sufficient  to  discharge 
them,  they  are  often  distributed  amongst  the  co-partners,  who  each 
undertake  to  pay  certain  debts.  But  this  undertaking  does  not  discharge 
the  other, partners  from  the  debts  as  regards  the  creditors  (1.  25  Cod. 
,  De  Pact.) ;  it  only  binds  him  who  entered  into  it  with  regard  to  his 
co-partners. 

The  expenses  of  the  act  of  distribution,  and  of  all  those  which  take 
place  preparatory  to  it,  ought  to  be  taken  from  the  company ;  that  is  to 
say,  that  they  ought  to  be  first  taken  from  the  common  moneys,  if  there 
be  any;  if  not,  each  of  the  joint  ow-ners  ought  to  contribute  thereto,  in 
proportion  to  his  share  in  the  stock. 

174.  It  remains  to  be  observed,  with  regard  to  distribution  of  part- 
nership   effects,  and  other  acts  which  are  substituted  for  them,  that 
equality  is  more  scrupulously  required  than  in  commutative  contracts, 
such  as  contracts  of  sale,  exchange,  &c.     In  those,  a  person  of  full  age 
cannot  be  heard  to  demand  a  rescission  of  a  contract,  solely  on  account  of 
r*lQn  *^e  ^oss  which  *he  Qas  suffered,  if  it  is  not   more  than   a  half: 

J  but  in  distributions  and  other  acts  which  are  substituted  for 
them,  it  is  sufficient  that  it  exceeds  a  fourth  of  what  ought  to  belong  to 
him  who  complains  of  the  distribution,  as  we  have  seen  in  my  Treatise 
on  Obligations,  n.  35. 

§.  III.  As  to  the  Obligations  which  arise  from  tJie  Distribution. 

175.  The  partner  whose  allotted  share  is  made  subject  to  a  charge, 
contracts,  by  the  distribution,  the  obligation  of  paying  it. 

These  charges  consist  either  of  a  sum  of  money  or  of  a  rent,  accord- 
ing as  the  parties  have  agreed. 

When  the  charges  consists  of  a  sum  of  money  charged  upon  one  lot 
in  favour  of  another,  that  charge  is  a  personal  debt  of  the  sum  so  charged ; 
he  to  whom  the  lot  so  charged  falls,  contracts  that  debt  towards  him  to 
whose  lot  the  charge  has  fallen ;  he  cannot  discharge  himself  from  it  by 
offering  to  abandon  entirely  his  lot. 

In  distributions  of  immoveables,  and  even  of  productive  moveables, 
such  as  cattle,  stock  in  trade  of  a  shop,  &c.,  these  charges,  will,  by  oper- 
ation of  law,  carry  interest  from  the  day  of  the  distribution.  But,  when 
the  joint  stock  is  only  composed  of  unproductive  moveables,  I  think  it 
is  otherwise,  and  that  the  interest  upon  the  charge  is  only  due  ex  mord 
— that  is  to  say,  only  from  the  day  of  the  demand  or  decree  for  payment 
made  to  the  debtor. 

The  person  to  whom  the  charge  is  due  has  a  primary  lien  (Jiypotlieque 
privelegiee)  over  all  the  immoveables  of  the  lot  liable  to  it,  and  a  pri- 
vilege over  the  movable  of  the  said  lot,  similar  to  that  of  a  vendor  on 
credit. 

176.  When  in  the  partition  of  immoveables,  the  charge  upon  one  lot 

paid  for  out  of  the  partnership  capital,  it  is  not  purchased  for  the  purposes  of 
partnership  in  trade,  it  will,  in  the  absence  of  any  agreement,  or  direction  for  its 
sale,  retain  the  character  of  realty.  1  Lead.  Cas.  Eq.  130,  137.  Bisset,  Part. 
48. 


EFFECT    OF    DISSOLUTION.  103 

in  favour  of  another,  consists  of  a  rent ;  for  instance,  when  it  is  said 
that  the  first  lot  shall  pay  to  the  second  a  rent  of  100  livres,  or  a  mea- 
sure of  wheat,  for  rent,  that  rent  is  a  ground-rent  or  rent-charge  upon 
the  estates  composing  that  lot. 

These  rents  are  of  the  same  nature  and  entirely  similar  to  those  which 
are  created  by  lease  of  an  estate. 

*They  are  a  real  charge  on  the  estates  comprised  in  the  lot  ..^-on-i 
which  is  charged  therewith  ;  they  are  primarily  due  from  these  *- 
estates;  he,  to  whose  lot  they  have  fallen,  is  only  the  debtor  on  account 
of  the  said  estates  which  he  possesses,  and  he  can  free  himself  from  them 
by  alienating  (deguerpissani)  or  releasing  them,  unless  the  exercise  of 
this  power  has  been  interdicted  by  a  clause  (defournir  etfaire  valoir  la 
rente}  to  provide  and  pay  the  rent,  or  by  some  other  clause  which  excludes 
a  release.  See  my  treatise  on  the  contract  of  "  Bail  k  Rente/* 

He  to  whom  the  charge  has  fallen  has,  for  enforcing  the  payment 
of  it,  the  same  rights  as  the  owners  of  rent-charges.  These  rents, 
created  as  a  charge,  where  a  distribution  takes  place,  are  not  redeemable, 
unless  the  power  of  redemption  has  been  expressly  granted  at  or  after 
the  distribution  ;  and  that  power  is  liable  to  prescription.  In  a  word, 
all  that  I  have  said  of  rent-charges  in  my  treatise  on  the  contract  of 
"  Bail  a  Rente,"  is  applicable  to  these. 

177.  All  that  has  been  said  only  takes  place  when  the  lot  has  been 
charged  immediately  with  a  rent. 

But  if  it  was  said  that  such  a  lot  shall  pay  to  the  other  such  sum,  for 
the  price  of  which  he  will  give  to  him  such  a  rent,  that  rent  would  not 
be  a  (rente  foncieree)  rent-charge  :  it  would  be  (rente  constitute}  an 
annuity  for  the  price  of  the  payment,  always  redeemable,  according  to 
the  nature  of  annuities.  It  would  be  a  personal  debt  of  the  person 
to  whom  the  lot  should  have  fallen  which  is  charged  with  it ;  but  it 
would  not  be  a  real  charge  upon  the  estates  of  that  lot,  which  would  only 
be  hypothecated  for  it. 

178.  Another  obligation  which  arises  from  distribution,  is  the  obli- 
gation of  guarantee,  that  each  of  the  joint  owners  reciprocally  contracts 
towards  each  of  his  fellows,  for  the  guarantee  of  the  property  comprised 
in  their  respective  lots.     I  have  treated  fully,  in  the  Treatise  of  the  Con- 
tract of  Sale,  part.  7,  art.  6,  and  afterwards  in  n.  633,  to  the  end  of 
that  article,  on  all  that  concerns  this  guarantee ;  and  I  have  observed 
there  that  it  differs  in  four  respects  from  that  which  arises  from  the  con- 
tract of  sale.     I  refer  to  it  in  order  to  avoid  repetition. 

*§  IV.  As  to  the  Effect  of  Di&trilution.  [*133] 

179.  The  effect  of  the  distribution  is  to  dissolve  the  community  which 
remained  between  the  former  partners  after  the  dissolution  of  the  part- 
nership. 

There  is  a  great  difference  between  our  French  law  and  the  Roman 
law,  as  to  the  effect  of  the  distribution.  By  the  Roman  law,  the  distribu- 
tion was  a  kind  of  exchange;  divisio instar permutationis  obtinet ;  each 
of  the  joint  owners  was  considered  to  acquire  from  his  fellows  the  shares 


104  POTHIER    ON    PARTNERSHIP. 

which  they  had  before  the  distribution  in  the  effects  comprised  in  his  lot, 
and  to  cede  to  them  in  lieu  thereof  what  he  had,  before  the  distribution 
in  the  effects  comprised  in  theirs.  On  this  account,  the  things  which 
fell  to  the  lot  of  one  of  the  joint  owners  remained  subject  to  the  charges 
of  the  creditors  of  his  copartners,  according  to  their  shares  therein 
before  the  distribution.  L.  6,  §  8,  ff.  Comm.  Div.  (Dig-  lib.  x.  tit.  3, 
1.  6,  §  8.) 

According  to  our  French  law,  on  the  contrary,  a  distribution  is  not 
regarded  as  a  title  of  purpchase,  but  as  an  act  which  solely  converts  the 
indefinite  shares  which  each  of  the  joint  owners  previous  to  the  distribu- 
tion, was  entitled  to,  in  the  community  which  existed  between  them,  into 
the  property  alone  fallen  to  the  lot  of  each. 

These  acts  of  distribution  have,  according  to  our  French  law  a  retro- 
spective effect.  In  consequence,  the  property  fallen  to  each  lot  is  con- 
sidered to  have  always  alone  composed  the  share  which  he  to  whose  lot 
it  is  fallen  had  in  the  community.  He  is  considered  to  have  been  the 
sole  proprietor  thereof  since  it  has  been  put  into  or  acquired  on  account 
of  the  community,  and  never  to  have  had  any  share  since  it  had  been 
contracted,  in  the  property  fallen  to  the  lot  of  the  other  joint  owners. 
The  distribution,  according  to  these  principles,  is  not  a  title  of  purchase; 
and  each  of  the  joint  owners  acquires  nothing  by  the  distribution  from 
the  others. 

It  is  for  this  reason  that  distribution  affords  no  claim  to  seigneurial 
r*"R4-T  rign*s-     I*  *s  a^so  f°r  tn^s  reason  that  no  part  of  *the  estates 
J  fallen  to  the  lot  of  each   of  the  joint  owners  is  subject  to  the 
liens  of  the  private  creditors  of  the  others. 

For  example,  if,  by  the  distribution  which  we  make  of  a  community 
composed  of  estates  which  we  have  each  put  therein,  and  others  which 
we  have  acquired  on  account  of  the  partnership,  the  estates  which  fall 
into  my  lot  are  those  which  I  have  brought  into  it  by  our  contract  of 
partnership,  they  will  be  considered  never  to  have  ceased  to  belong  to 
me  entirely.  The  contract  of  partnership  which  I  have  entered  into 
with  you,  by  which  I  have  put  them  into  a  community,  only  gives  to 
you  a  conditional  right  therein,  depending  upon  the  event  of  the  distri- 
bution, in  case  only  they,  by  the  distribution,  fall  to  your  lot.  The 
event  of  the  distribution  having  caused  the  failure  of  the  condition,  you 
are  considered  never  to  have  had  any  right  to  them ;  and,  consequently, 
not  to  have  been  able  to  hypothecate  them  to  your  creditors. 

If  the  estates  which  you  have  put  into  the  community  fall  to  my  lot, 
they  are  considered  to  have  composed  my  share  in  the  community  from 
the  time  of  the  contract  of  partnership.  I  am  considered  to  have 
acquired  them  from  you  entirely  from  that  time  by  the  contract  of  part- 
nership, from  the  instant  of  the  contract ;  and  not  solely  by  the  distri- 
bution. For  this  reason  you  have  not  been  able,  after  the  contract  of 
partnership,  to  hypothecate  them  ;  aad  they  can  be  only  subject  to  the 
charges  created  by  the  contract  of  partnership,  from  which  you  are 
obliged  to  guarantee  me. 

If  the  estates  which  have  fallen  to  my  lot  are  those  which  have  been 
acquired  on  account  of  the  partnership  during  its  continuance,  they  are 


EFFECT     OF    DISSOLUTION.  105 

equally  considered  to  have  belonged  to  me  entirely  from  the  time  when 
they  were  acquired  on  account  of  the  partnership,  which  is  considered 
to  have  acquired  them  in  order  to  compose  the  share  of  him  to  whose  lot 
they  may  fall;  no  part  of  them,  consequently,  can  be  hypothecated  by 
my  partner. 

180.  These  principles  operate  with  regard  to  distribution  which  are 
made  (avec  retour  de  deniers)  with  a  return  of  money,  and  even  with 
regard  to  licitations.  When  an  estate  alone  comprising  the  commu- 
nity which  existed  between  you  and  me  has  been  adjudged  to  me  by 
licitation,  that  estate,  *since  it  has  been  in  community,  is  con-  r^-ioc-i 
sidered  to  have  always  belonged  entirely  to  me ;  and  you  are  L 
considered  never  to  have  had  any  thing  for  your  share  in  the  community, 
except  the  sum  which  I  am  obliged  to  pay  you  for  your  share  of  the 
amount  of  the  licitation.  You  could  not,  in  consequence  hypothecate 
any  part  of  that  estate  during  the  community. 


INDEX. 


The  pages  referred  to  are  those  between  brackets  [  ] . 

AGENCY.    See  Partnership. 

when  distinguishable  from  partnership,  8,  n. 
ANONYMOUS  PARTNERSHIP,  definition  of,  42.  75,  n. 

in  what  respect  similar  to  and  different  from  partnership  en  commandite, 
43. 

forms  required  for,  58,  n. 

liability  of  known  partner  for  debts  of,  75. 

how  managed,  57,  n. 
APPROPRIATION  of  payment  to  one  partner  when  debt  due  to  partner  and 

partnership,  88. 
ARBITRATORS,  when  partners  can  demand  to  be  sent  before,  99. 

appointment  of,  98. 

when  they  cannot  agree,  third  to  be  appointed,  99. 

in  what  manner,  99. 

judgment  of,  100. 
ASSOCIATION  IN  PARTICIPATION.    See  Compte  en  participation. 

COMMERCE.     See  Partnerships  en  nom  collectif,  Partnerships  en  commandite, 
Anonymous  Partnerships,  Compte  en  Participation. 

Partnerships  for,  39. 

COMMUNITY,  distinction  between,  and  partnership,  2,  3,  4. 
COMPROMISE  OF  SUIT.     See  Partnership. 

partner  with  power  of  management  cannot  effect,  46. 
COMPTE  EN  PARTICIPATION,  what  it  is,  42. 

what  forms  required  for,  59.  n. 

DEBTS  of  partnerships,  en  nom  collectif,  70. 

of  partnerships  en  commandite,  75. 

of  anonymous  partnerships,  75. 

of  partnerships  not  being  partnerships  in  trade,  77. 
DISSOLUTION.     See  Partnership. 

of  partnership,  101. 
DISTRIBUTION  OR  DIVISION.    See  Partnership. 

of  partnership  effects,  122. 
DOMICILE,  contract  of  partnership  to  be  governed  by  laws  of,  131. 

place  where  parties  enter  into  contract  presumed  to  be  place  of,  121. 

if  they  were  there  only  temporarily,  121. 

contract  to  be  governed,  not  by  law  of  the  place  where  estates  situated,  but 
by  domicile  of  parties,  121. 

if  instrument  executed  at  the  domicile  of  one  party,  its  law  is  to  be  followed, 
122. 

if  at  the  domicile  of  neither,  of  the  one  having  the  largest  share,  122. 

if  shares,  equal,  the  law  most  conformable  to  common  law  must  govern, 
122. 


108  POTHIER    ON    PARTNERSHIP. 

DONATION.    See  Partnership. 

when  partnership  consists  partly  of,  13. 

EN  COMMANDITE.    See  Partnerships  en  commandite. 

partnerships  in,  41.  75. 
EN  NOM  COLLECTIF.    See  Partnerships  en  nom  colkctif. 

partnerships  in  39.  41. 

LEONINE  PARTNERSHIP  void  as  unjust,  7,  8. 

LOSSES.     See  Anonymous  Partnership,  Partnership,  Particular  Partnerships, 
Partnership  en  commandite,  Partnership  en  nom  collectif. 

of  partners  how  to  be  borne  by  partners,  15. 

of  partnership,  49. 

MANAGER.    See  Partner. 

MANDATE  subject  to  revocation  not  a  partnership,  7. 

MOMENTANEOUS  PARTNERSHIP,  definition  of,  42. 

PARTICULAR  PARTNERSHIPS.    See  Partnership  en  nom  collectif,  Part- 
nership en  commandite,  Anonymous  Partnership. 

may  be  either  in  things  or  their  profits,  36, 37. 

or  in  the  produce  of  their  sale,  37. 

upon  whom  the  loss  falls  if  the  thing  brought  into  partnership  perish,  37, 
38. 

for  the  exercise  of  a  profession,  39. 

when  illegal,  39. 

partnerships  in  commerce,  39. 

not  commercial,  what  forms  required  for,  61. 
PARTNER,  how  each  may  use  partnership  property,  61. 

if  intended  to  be  let  out  to  hire,  62. 

if  not  so  intended,  62. 

must  contribute  towards  preservation  of  partnership  property  as  for  repairs, 
62. 

cannot  make  any  change  or  innovation  on  estates,  63. 

as  building  without  consent  of  other  partners,  63. 

where  they  have  allowed  buildings,  63. 

can  only  alienate  or  bind  his  own  share,  64. 

in  commercial  partnerships  how  far  one  can  bind  others,  64,  65. 

how  far  one  partner  can  prevent  another  concluding  a  bargain,  66. 

partner  can  dispose  of  his  own  share  to  third  party,  66. 

but  cannot  without  consent  bring  him  into  the  partnership,  67. 

third  party  must  account  to  him  for  gains  made  out  of  partnership  property, 
67. 

and  other  partners  can  only  proceed  against  their  partner  for  an  account, 
67. 

who  is  also  liable  for  damage  occasioned  by  third  party,  68. 

even  if  he  be  insolvent,  68. 

may  commence  action  against  third  party  for  an  account,  68. 

third  party  should  be  party  to  the  action  against  a  partner,  68. 

profits  of  third  party  cannot  be  set  off  against  damage  occasioned  by,  68. 

partner  selling  share  to  third  party,  bound  to  account  for  damage  occasioned 
by  himself  or  partners,  69. 

manager  cannot  take  a  third  party  into  the  partnership,  70. 

can  commence  the  action  pro  socio  when,  81. 

liability  of,  to  account  to  partnership,  81. 

for  what  he  has  promised  to  contribute  thereto,  82. 

at  whose  risk  it  is  when  specific  property  brought  into  partnership,  82. 

when  not  specific,  as  money,  84. 

is,  except  in  universal  partnership,  debtor,  if  partnership  evicted  from  pro- 
perty contributed  by  him,  85. 


INDEX.  109 

PARTNER— continued. 

and  for  the  fruits  of  property  when,  85. 
and  for  interest  on  money  when,  86. 

liable  for  fruits  or  interest  only  when  enjoyment  of  property  only  to  be  con- 
tributed, 86. 

must  restore  all  withdrawn  from  partnership  fund,  86. 
with  interest,  87. 

which  in  universal  partnerships  commences  only  from  dissolution,  87. 
must  account  to  partnership  for  gains  made  by  skill,  88. 
but  only  for  that  which  he  has  contracted  to  bring  into  the  partnership, 

88. 

how  payment  of  a  creditor  to  partner  and  partnership  should  be  appropri- 
ated by,  88. 
obtaining  payment  of  his  share  of  the  debt  in  full  must  bring  it  into  the 

common  stock,  89. 

so  if  he  sells  his  own  share  of  partnership  goods,  90. 
unless  it  were  property  not  intended  for  sale,  90. 
will  not  be  obliged  to  bring  common  strock  profits  of  which  partnership 

was  only  accidental  cause,  90. 
as  a  donation  or  legacy,  90. 
must  account  for  losses  caused  by  his  faults,  91. 
even  for  omission,  91. 
but  not  for  the  lightest  negligence,  91. 
distinction  between  levissima  and  crassa  negligentia,  91. 
cannot  set  off  profits  made  by  his  industry,  92. 

putting  property  into  partnership  for  enjoyment  only  entitled  to  it  at  dis- 
solution, 92. 

at  whose  risk  it  remains,  93. 

entitled  to  expenses  incurred  in  affairs  of  partnership,  93. 
and  to  be  indemnified  from  obligations,  93. 
and  from  unavoidable  risks  and  hazards,  94. 
as  when  he  or  his  servants  have  been  robbed  or  wounded  on  a  journey  on 

partnership  business,  94. 

partnership  not  liable  to  repay  money  not  wanted  for  journey,  95. 
when  part  of  money  saved,  95. 
partnership  not  liable  to,  for  losses  of  which  it  has  been  only  the  accidental 

cause,  95. 

cannot  claim  indemnity  for  neglect  of  his  own  affairs  for  those  of  partner- 
ship, 96. 

to  whom  debt  is  due  from  partnership,  must  share  loss  when  one  of  the  part- 
ners is  insolvent,  96. 

must  allow  other  to  enjoy  common  property,  97. 
and  contribute  to  its  repair  and  preservation,  97. 
unless  they  offer  to  abandon  it,  97. 
must  submit  to  distribution  on  dissolution,  97. 
PARTNERSHIP,  distinction  between,  and  community,  2,  3,  4. 
to  what  class  of  contracts  it  belongs,  4,  5. 
formalities  requisite  for,  4. 

each  partner  must  contribute  something  thereto,  6. 
not  necessarily  anything  of  the  same  nature,  6. 
but  it  must  be  appreciable,  6. 
must  be  for  the  common  interest  of  the  parties,  7. 
distinction  between,  and  mandate,  7. 
each  partner  in,  must  have  a  share  of  gain,  7. 
called  Leonine,  void  as  unjust,  7,  8. 

contract  of  valid,  if  each  partner  may  probably  have  share  of  profits,  8,  9. 
Mr.  Justice  Story's  observations  on,  when  distinguishable  from  agency  or 

service,  8,  n. 

invalid,  if  business  of  be  illegal,  11. 

to  be  equitable  (though  not  in  strict  law)  shares  of  profits  [should  be  in 
proportion  to  contribution  of  partners,  11. 


110  POTHIER    ON    PARTNERSHIP. 

PARTNERSHIP— continued. 

except  where  a  partner  contributing  less  has  with  the  knowledge  of  copart- 
ner an  equal  share  in  assigned  to  him,  13. 

or  he  confers  an  equivalent  upon  his  copartner,  14. 

losses  how  to  be  borne  by  partners,  15. 

fictitious  contracts  of,  to  disguise  usury,  void,  17. 

question  supposed  by  casuists,  18. 

different  kinds  of  partnerships,  23. 

universorum  bonorum,  23. 

quce  ex  qucestu  veniunt,  32. 

in  certain  things,  36. 

in  the  exercise  of  a  profession,  38. 

en  nom  collectif,  39. 

en  commandite,  39. 

anonymous,  39. 

clauses  in  contract  of,  43. 

its  commencement  and  duration,  44. 

its  management,  45. 

when  given  to  one  partner,  45. 

like  general  power  of  attorney,  45. 

what  it  enables  him  to  do,  45. 

in  universal,  46. 

in  commercial,  46. 

cannot  compromise  suit,  46. 

or  make  a  donation  of  effects  of,  46. 

except  such  as  are  usual,  46. 

except  in  the  case  of  community  between  husband  wife,  47. 

or  where  more  extensive  power  is  given  to  manager,  47. 

power  of  management  not  revocable  like  power  of  attorney,  47. 

partner  having,  can  act  against  dissent  of  another,  48. 

unless  granted  after  contract,  48. 

may  be  granted  to  several  partners,  48. 

or  divided  among  them,  48. 

their  powers  in  such  cases,  48. 

clause,  that  one  cannot  act  without  another,  must  be  observed,  49. 

as  to  shares  in  profits  and  losses,  49. 

when  contribution  consists  of  money  or  valued  effects,  share  of  profits  and 
losses  in  proportion,  50. 

if  effects  not  valued,  shares  in  the  absence  of  contract  equal,  50. 

clause  regulating  when  necessary,  50. 

amount  of,  may  be  left  to  regulation  of  a  third  party  or  one  of  themselves, 
51. 

when  it  may  be  reformed,  51. 

partner  may  be  recompensed  for  greater  contribution,  51. 

as  when  it  consists  of  greater  skill,  51. 

by  bearing  a  smaller  or  no  loss,  52. 

by  an  annual  or  fixed  sum,  52. 

by  withdrawal  of  larger  sum  contributed  with  interest  at  the  distribution, 
52. 

who  can  enter  into,  54. 

forms  required  for  contract  of,  55. 

dissolution  of,  101. 

effected  by  extinction  of  the  object,  101,  102. 

by  partner  becoming  incapable  of  contributing  industry  thereto,  as  by  para- 
lysis, insanity,  103,  n.  104. 

by  completion  of  the  business  of,  105. 

by  the  death  of  one  of  the  partners,  101.  105. 

right  of  his  heir,  105. 

does  not  become  a  partner,  106. 

by  the  Roman  law  it  could  not  be  agreed  that  heir  should  become  a  part- 
ner, 106. 


INDEX.  Ill 

PARTNERSHIP— continued. 

secus  by  the  French  law,  106. 

and  the  partnership  is  dissolved  between  surviving  partners,  107. 

if  no  contract  to  the  contrary,  107. 

exception  in  partnerships  for  farming  the  public  revenues,  107. 

dissolved  by  the  civil  death  of  partner,  107. 

or  by  his  insolvency,  108. 

may  be  dissolved  by  mutual  consent,  109. 

if  without  limitation  of  time,  may  be  dissolved  by  one  partner,  109. 

but  he  must  renounce  partnership  in  good  faith,  109,  110,  111. 

and  not  at  an  unseasonable  time,  109.  Ill,  112. 

for  a  certain  time  one  cannot  dissolve  it  sooner,  109. 

unless  for  just  cause,  113. 

notwithstanding  clause  not  to  dissolve  it  sooner,  113. 

what  are  just  causes  of  withdrawal,  114. 

bad  conduct  of  partner,  114. 

absence  required  on  state  affairs,  114. 

notice  to  be  given  of  renunciation,  114. 

who  answerable  for  losses  incurred  after  renunciation,  115. 

dissolution  of,  effect  of,  116. 

future  contracts  will  be  on  account  of  contracting  party,  116, 117. 

unless  necessary  consequence  of  the  affairs  of  the  partnership,  116,  117. 

or  where  partner  was  ignorant  of  the  dissolution,  117. 

payment  by  debtor,  ignorant  of  dissolution,  to  one  partner  valid,  119. 

when  he  will  be  considered  to  be  ignorant  thereof,  119. 

on  dissolution,  property  brought  into  partnership  for  enjoyment  only  ceases 
to  be  common,  120- 

and  produce  will  belong  to  owner,  120. 

as  to  customs  of  Paris,  Orleans,  and  Blois,  121. 

which  is  to  be  followed,  121.     See  Domicile. 

things,  the  property  of  which  has  been  put  into  partnership,  continue  com- 
mon until  distribution,  122. 

dissolution  of,  does  not  put  an  end  to  debts  between  partner  and  partnership, 
122. 

effects,  distribution  or  division  of,  122. 

partners  or  heirs  may  demand  an  account,  122. 

what  actions  they  can  maintain,  123. 

by  whom  distribution  can  be  demanded,  123. 

against  whom,  123. 

minors  cannot  demand  distribution  of  immoveables,  124. 

persons  of  full  age  can  even  against  minors,  124. 

when  distribution  takes  place,  124. 

may  be  postponed  by  agreement,  124. 

partner  may  sell  his  share  in  the  meantime,  124. 

but  third  party  is  bound  by  agreement,  124. 

mode  of  proceeding  to  a  distribution  of  the  effects  of,  125. 

different  mode  of  procedure  in  England,  129,  130,  n. 

in  Scotland,  130,  n. 

how  expenses  of  distribution  are  to  be  borne,  130. 

when  acts  of  distribution  can  be  rescinded,  130. 

obligations  arising  from  the  distribution,  131. 

commuity  is  dissolved  thereby,  133. 

distinction  between  French  and  Roman  law,  133. 

distribution  by  Roman  law,  species  of  exchange,  133. 
by  French,  is  retrospective,  133. 

effect  of  distinction,  133. 
PARTNERSHIP  EN  COMMANDITE.    See  Partner,  Partnership. 

what  it  is,  41.  75. 

liability  of  principal  partner  for  debts  of,  75. 

partner  en  commandite,  how  liable  for  debts  of,  75,  n.  77. 

what  acts  he  can  do,  75,  n. 
SEPTEMBER,  1854. — 33 


112  POTHIER    ON    PARTNERSHIP. 

PARTNERSHIP  EN  COMMANDITE— continued. 

when  liable  for  all  debts,  75,  n. 

it  does  not  exist  in  England,  76,  n. 

might  be  beneficially  extended  to,  76,  n. 
PARTNERSHIP  EM  NOM  COLLECTIF.    See  Partner,  Partnership. 

definition  of,  39.  41. 

how  contracts  of  each  partner  must  be  signed,  39.  41. 

of  what  it  is  composed,  40. 

as  to  things  acquired  by  partner  on  private  account  with  money  of  partner- 
ship, 40. 

forms  required  for,  58. 

liability  of  each  of  the  partners  in,  for  debts  jointly  and  separately,  70. 

heir  of  partner  liable  for,  71. 

what  is  a  partnership  debt,  71. 

by  whom  it  can  be  contracted,  71. 

partner  must  have  had  given  to  him  either  expressly  or  by  implication 
power  of  managing  affairs  of,  VI. 

when  presumed  to  have  been  given,  72. 

factor  or  agent  of  partners  can  bind,  74. 

debt  must  be  contracted  in  the  name  of,  74. 

and  is  binding  on  though  no  benefit  derived  therefrom,  74. 

secus  if  contract  did  not  concern  affairs  of  partnership,  74. 

or  if  debt  be  contracted  in  the  name  of  one  partner,  75. 

though  partnership  may  have  derived  benefit  therefrom,  75. 

remedy  of  creditor  in  such  case,  75. 
PARTNERSHIP  NOT  IN  TRADE.     See  Partner,  Partnership. 

partners  in  the  absence  of  contract  liable  only  severally,  78. 

and  for  an  equal  share  although  partnership  shares  unequal,  78. 

if  debt  contracted  by  one  partner,  although  in  joint  names,  he  alone  liable 
to  creditor,  79. 

but  he  may  make  his  partner  account  to  him,  79. 

other  partner  liable  when  he  has  given  power  to  other  to  contract  debts,  79. 
PARTNERSHIPS  QILE  EX  QU^ESTU  VENIUNT.    See  Partner,  Partner- 


everything  acquired  by  commerce  falls  into,  32. 

or  by  any  profession,  &c.,  33. 

when  it  is  considered  to  be  contracted,  32. 

enjoyment  of  property  only  according  to  Roman  law  entered  therein,  32,  n. 
33. 

moveable  property  also  by  French  Law,  32,  n.  33. 

profits  of  profession,  33. 

even  although  contract  acquiring  property  declares  it  to  be  made  on  pri- 
vate account  of  one  partner,  33. 

real  estate  acquired  prior  to  partnership  does  not  fall  therein,  34. 

nor  property  accruing  from  cancellation  of  contract  aliening  it,  34. 

nor  when  acquired  from  droit  de  retrait  lignager,  34. 

or  by  exchange,  34. 

or  by  succession,  35. 

not  bound  by  the  Roman  law  by  debts  of  partners  before  contract,  35. 

in  French  law,  bound  by  debts  affecting  the  moveables,  35. 

bound  by  debts  contracted  for  business  of  partnership  during  its  continu- 
ance, 35. 

forms  required  for,  56. 
PARTNERSHIP  UNIVERSORUM  BONORUM.    See  Partner,  Partnership. 

nature  of,  24. 

express  contract  for  necessary,  25. 

may  be  entered  into  between  persons  of  unequal  wealth,  25. 

property  how  rendered  common  by  contract,  25.  - 

except  as  to  active  debts  by  Roman  law,  26. 

secus  by  the  French  law,  26. 

all  present  and  future  property  of  partners  falls  into  it,  27. 


INDEX.  113 

PARTNERSHIP  UNIVERSORUM  BONORUM— continued. 

except  legacy  or  donation  with  condition  that  they  should  not  do  so,  27. 

similar  condition  in  contract  of  purchase  by  partner  not  available,  27. 

by  the  Code  all  property  by  succession,  donation,  or  legacy,  except  for 
enjoyment,  does  not  fall  into,  24,  n. 

nor  property  acquired  by  crime,  28. 

is  chargeable  with  present  and  future  debts  and  expenses  of  partners,  29. 

except  such  as  are  extravagant,  30. 

or  money  lost  at  play  or  in  debauchery,  31. 

or  penalties  for  offences  committed  by  a  partner,  31. 

unless  unjustly  condemned,  31. 

when  partner  considered  to  be  unjustly  condemned,  31. 

bound  where  partner  has  brought  in  capital  arising  from  an  offence,  31. 

power  of  management  in,  given  to  one  partner  what  it  enables  him  to  do, 
46. 

forms  required  for,  56. 

liability  of  partners  ia,  for  debts  contracted  by  one  of  them,  80. 

has  no  warranty  against  partner  contributing  estates  from  which  it  is  evicted, 
85. 

interest  on  sums  withdrawn  by  partner  commences  only  from  dissolution, 

87. 
PARTOWNERSHIP,  or  community,  distinction  between,  and  partnership,  2, 

3,4. 
PRESCRIPTION,  cannot  be  set  up  to  exclude  action  for  distribution,  125. 

unless  there  has  been  separate  possession  for  thirty  years  125. 
PROFESSION.     See  Particular  Partnerships. 

partnerships  for  the  exercise  of,  38. 
PROFITS.     See  Partnerhip. 

of  partnership,  49. 

losses  to  be  borne  in  proportion  to,  15. 
PRO  SOCIO.     See  Partner,  Parnership. 

action  of,  when  and  against  whom  it  lies,  81.  97. 

is  personal,  98. 

can  generally  be  maintained  from  time  of  dissolution,  98. 

as  to  particular  objects  while  partnership  lasts,  98. 

parties  may  demand  to  be  sent  before  arbitrators,  98. 

USURY.     See  Partner,  Partnership. 

fictitious  contracts  of  partnership  to  disguise,  void,  17. 


This  book  is  DUE  on  the  last  date  stam 

to 
MAY  13  193<F 


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NON-RENEWABLE 


Form  L-9-35m-8,'28 


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MAY  1 1 1978 


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